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The U.S. Equal Employment Opportunity Commission

Hot EEO Trends and

Guidance for Employers

Maria E. Flores

Program Manager

EEOC Milwaukee Area Office

Milwaukee Metro SHRMHR a la Carte

September 20, 2016

U.S. Equal Employment Opportunity Commission

The EEOC is the key civil rights agency responsible for enforcing federal laws that prohibit employment discrimination.www.eeoc.gov

EEOC Mission Statement

Our mission is to promote equal opportunity in employment through:

outreach and education, compliance and/or voluntary settlement,

and, where necessary, the rigorous enforcement of the federal civil

rights employment laws through administrative and judicial actions.

The EEOC enforces a number of federal laws prohibiting employment discrimination:

Title VII of the Civil Rights Act of 1964 (Title VII) Equal Pay Act of 1963 (EPA) Age Discrimination in Employment Act of 1967 (ADEA) Title I & V of the Americans with Disabilities Act of 1990

(ADA) ADA Amendments Act of 2008 (ADAAA) Ss. 501 & 505 of Rehabilitation Act Civil Rights Act of 1991 Pregnancy Discrimination Act of 1978 Title II of the Genetic Information Nondiscrimination Act

of 2008 (GINA) Lilly Ledbetter Fair Pay Act of 2009

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Obligations of Employers

Make the workplace free of unlawfuldiscrimination, harassment and retaliation

Promptly and confidentially investigatecomplaints of discrimination, harassment and retaliation

Where discrimination, harassment and retaliation may have occurred, take prompt and appropriate remedial action(i.e., discipline commensurate with the offense)

What Employers Are Covered?

Private Employers Educational Institutions Labor Organizations Joint Labor-Management

Apprenticeship and Training Committees (Title VII & ADA)

Employment Agencies Serving Covered Employers

State and Local Governments

Who is Protected?

An employee A temporary employee A job applicant A former employee Non-U.S. citizens,

regardless of immigration status

Discrimination Can Occur in the Following Scenarios:

Hire/Fire

Wages

Promotion/Demotion

Harassment

Different Terms and Conditions: i.e. Job Assignments, Benefits, Leave, Training

Failure to Accommodate for Disability

Failure to Accommodate for Religion

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What Is Employment Discrimination?

Different treatment because of . . .

Protected Federal CategoriesRace National Origin Color

Genetic Information

Disability Religion Sex/Pregnancy/ Age LGBT 40 & older

EEOC Stats & Tech

FY15 Charge Receipts 89,385

BASIS PERCENTAGE TOTAL

Retaliation 44.5% 39,757

Race 34.7% 31,027

Disability 30.2% 26,968

Sex 29.5% 26,396

Age 22.5% 20,144

National Origin 10.6% 9,438

Religion 3.9% 3,502

Color 3.2% 2,833

Equal Pay 1.1% 973

GINA 0.3% 257

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FY15 - Resolutions

TYPE NUMBER

All Resolutions 92,641

Merit Resolutions 16,761 (18.1%)

No Reasonable Cause 60,440 (65.2%)

Administrative Closures 15,400 (16.7%)

FY15 - Litigation

LAWSUITS NUMBER

All lawsuits filed 174

Merits 142

Subpoena or Preliminary Relief 32

RESOLUTIONS NUMBER

All Resolutions 171

Merits 155

Subpoena or Preliminary Relief 16

Digital Charge System

Phase I

All EEOC offices are now using the Digital Charge System which allow employers against whom a charge of employment discrimination has been filed to interact online with the EEOC thru a secure Respondent portal that allows the Respondent to:

Receive and download notice of charge and Request for Information (RFI)

Review an invitation to mediate and respond to it Submit a position statement and attachments to the EEOC Electronic response to RFI requests Provide or verify Respondent contact information ,

including the designation of a legal representative

Digital Charge System

Phase II

Allows Charging Parties to track the progress of EEOC’s investigation of a charge, including the mediation and conciliation stages.

Respondents can access the system and receive the same information as Charging Parties on the status of the charge.

Available for charges filed on or after September 2, 2015. (It is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practice Agencies).

Provides up-to-date status on an individual charge. Includes an overview of the process that charges follow

from intake to resolution. Includes contact information for EEOC staff assigned to the

charge.

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Release of Position StatementsNew for 2016

Applies to PS we asked an employer for on or after Jan. 1, 2016

Upon request, we will share PS with CP

Segregate confidential, trade secret, and medical information into attachments

Rebuttals won’t be shared

See “Effective Position Statements” and “Q & A for Respondents” on eeoc.gov.

Effective Position Statements

At a minimum, should include specific, factual responses to every allegation of the charge

Employer may incude any other facts they deem relevant for EEOC's consideration

The position statement should clearly explain the Respondent's version of the facts and identify the specific documents and witnesses supporting its position.

Position Statements Pointers Provide any applicable practices, policies or procedures

applicable to the allegations in the charge.

Identify any individuals who have been similarly affected by these practices, policies or procedures and describe how these have been applied.

Explain why individuals who were in a similar situation to the Charging Party were not similarly affected.

Identify official(s) who made decisions or took action relating to the matter(s) raised in the charge.

Be specific about date(s), action(s) and location(s) applicable to this case

Provide internal investigations of the alleged incidents or grievance hearing reports.

Resources – Digital Charge System

“About the Digital Charge System” --http://www.eeoc.gov/employers/act-digital-phase-1.cfm

“Questions and Answers - EEOC's Digital Charge System and Phase I - Respondent Portal” --http://www.eeoc.gov/employers/act-digital-qanda.cfm

“EEOC Respondent Portal- User's Guide” --http://www.eeoc.gov/employers/respondent_portal_users_guide.cfm

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Resources – Position Statements

“Questions and Answers for Respondents on EEOC's New Position Statement Procedures” --http://www.eeoc.gov/employers/position_statement_procedures.cfm

“Effective Position Statements” --http://www.eeoc.gov/employers/position_statements.cfm

“Questions and Answers for Charging Parties on EEOC's New Position Statement Procedures” --http://www.eeoc.gov/employees/position_statement_procedures.cfm

EEO-1 Surveys Due to EEOCby Sept. 30

The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a contract/subcontract of $50,000 or more to file the EEO-1 report.

The EEO-1 report provides valuable employment data by race/ethnicity, gender and job categories, and is used by researchers, private attorneys, human resource staff, etc. in developing affirmative action plans, and in the Commission's enforcement of Title VII of the Civil Rights Act.

EEO-1 Surveys Due to EEOCby Sept. 30

If you meet the aforesaid listed criteria listed, or filed the EEO-1 report in 2015 and have not received the 2016 EEO-1 notification letter by Aug.15, 2016, immediately contact the EEO-1 Joint Reporting Committee at 1-877-392-4647 (toll-free) or e-mail e1.techassistance@eeoc.gov.

EEO-1 Surveys Due to EEOCby Sept. 30

Additional information on EEO-1 Data Load Enhancements may be found at: https://www.eeoc.gov/employers/eeo1survey/eeo1-data-upload-enhancements.cfm.

EEOC's EEO-1 survey website for EEO-1 contains reference documents such as a sample form, instructions, FAQ's, a fact sheet and EEO-1 Job Classification Guide.

https://www.eeoc.gov/employers/eeo1survey/faq.cfm

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Update on the EEOC’s Strategic Enforcement Plan

Strategic Enforcement Plan

Adopted by the Commission on 12/17/12

Targeted Enforcement

“broad and significant impact to prevent and remedy discriminatory practices in the workplace.”

Integrated approach

Between offices and staff and other agencies including DOL and OFCCP

Systemic Program

Systemic discrimination cases are “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location.”

SEP National Priorities

1. Eliminating barriers in recruitment & hiring – Racial, ethnic and religious groups, older workers, and people with disabilities. Exclusionary policies, steering and screening tools

2. Protecting immigrant, migrant & vulnerable workers – disparate pay, job segregation, harassment, trafficking

3. Addressing emerging & developing issues – ADA issues, accommodating pregnancy limitations, LGBT coverage

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SEP National Priorities

4) Enforcing equal pay laws –compensation systems and practices based on gender; use directed & Commissioner charges.

5) Preserving access to the legal system – retaliatory actions, overly broad waivers, settlements restricting access to EEOC

6) Preventing harassment through systemic enforcement & targeted outreach – includes all forms of harassment

ENFORCMENT PRIORITY NO. 1:

Eliminating Barriers in Recruitment/Hiring

Exclusion of women from traditionally male dominated fields of work

Press Release, March 25, 2016

Mavis Discount Tire to Pay $2.1 Million to Settle EEOC Class Sex Discrimination Lawsuit (to be divided up amongst 46 aggrieved women)

According to EEOC's lawsuit, Mavis engaged in a pattern or practice of sex discrimination by refusing to hire women for its field positions - managers, assistant managers, mechanics, and tire technicians - in the company's over 140 stores throughout Connecticut, Massachusetts, New York, and Pennsylvania. EEOC also charged that Mavis failed to make, keep, and preserve employment records.

Failure to Employ Black and Hispanic Journeypersons

Press Release, April 13, 2016

Union and Apprentice Program To Pay $1,650,000 to Settle Part of EEOC Race Bias Lawsuit

EEOC's decades-old lawsuit continues to address allegations that Local 25, which is the trade union for sheet metal journeypersons in northern New Jersey, together with Local 25 Joint Apprenticeship Committee, discriminated against black and Hispanic journeypersons in hiring and assignments.

The settlement covers violations from April 1991 through December 2002.

Analysis of hours and wages showed African-American and Hispanic workers received fewer hours of work than their white co-workers for most of the 10-year period. Prior court actions in the lawsuit resolved violations before April 1991.

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Additional Hire Cases

Cintas Corporation to Pay $1.5 Million to Settle EEOC Class Sex Discrimination Lawsuit, 11/30/15 (failure to hire women),

EEOC Sues Workplace Staffing Solutions for Rejecting Women for Trashcan Collector Jobs, 11/6/15

EEOC and Cabela’s Enter Into a Settlement in Collaborative Efforts to Improve Hiring and Recruiting Practices, 9/23/15 (failure to recruit and hire minorities)

Justice Department Sues North Dakota State Agency for Discrimination Against Native American Job Applicants at Pine Ridge Reservation, 11/3/15

EEOC &Arrest and Conviction Records

On April 25, 2012, the Commission, in a 4-1 bi-partisan vote, issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

“Targeted Screen”3 Factors:

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

“Individualized Assessment”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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J.B. Hunt Agrees to Settle EEOC Race Discrimination Case Regarding Criminal

Conviction Records(June 2015, Los Angeles, CA)

One of the largest transportation companies in North America

The settlement follows conciliation between the EEOC and J.B. Hunt over claims that an African-American job candidate was denied a truck driver position in 2009 based on a criminal conviction record, which the EEOC contends was unrelated to the duties of the job.

BMW to Pay $1.6 Million and Offer Jobs to Settle Federal Race Discrimination Lawsuit

(September 2015, Greenville, SC)

EEOC charged the company's criminal background policy disproportionately affected African-American logistics workers.

When BMW switched contractors handling the company's logistics at its production facility in Spartanburg, S.C., in the summer of 2008, it required the new contractor to perform a criminal background screen on all existing logistics employees who re-applied to continue working in their positions at BMW.

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

Background Checks: What Employers Need to Know: http://www.eeoc.gov/eeoc/publications/upload/eeoc_ftc_background_checks_employers.pdf

Arrest and Conviction Records in Employment: Best Practices

https://www.eeoc.gov/eeoc/publications/upload/brochure-arrest-conviction-best-practices.pdf

EEOC Resources on Criminal Background Checks

Federal Interagency Reentry CouncilReentry Mythbuster Fact Sheets

https://csgjusticecenter.org/nrrc/projects/mythbusters/

Best Practice Standards: The Proper Use of Criminal Records in Hiring http://hirenetwork.org/sites/default/files/Best-Practices-Standards-The-Proper-Use-of-Criminal-Records-in-Hiring.pdf

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National Reentry Justice Centerhttps://csgjusticecenter.org/reentry/

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Employer Best Practices in Recruitment & Hiring

Eliminate policies or practices that exclude people from employment based on any criminal record.

Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination.

Implement practices designed to widen and diversify the pool of candidates considered for employment openings.

Monitor for EEO compliance by conducting self-analyses to determine whether current employment practices disadvantage individuals of federally protected groups.

Employer Best Practices in Recruitment & Hiring

Analyze the duties, functions, and competencies relevant to jobs and then create objective, job-related qualification standards related to those requirements. Make sure they are consistently applied when choosing among candidates.

Ensure selection criteria do not disproportionately exclude certain racial groups unless the criteria are valid predictors of successful job performance and meet the employer’s business needs.

When using an outside agency for recruitment, make sure the agency does not search for candidates of a particular race or color.

ENFORCEMENT PRIORITY NO. 2:Enforcement Guidance on

Underserved & Vulnerable Populations

Immigrant, Migrant & Vulnerable Workers

• Vulnerable workers are those who are unaware of their rights or reluctant or unable to exercise them, e.g., young people, and both documented and undocumented immigrants.

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EEOC is committing to

“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.”

Commission Meetings& Responses

Employment of People with Mental Disabilities (FY 2011)

Human Trafficking (FY 2011)

Retaliation (FY 2015)

Race and National Origin (FY 2015)

Harassment (FY 2015)

Immigrant Worker Team

Select Task Force on the Study of Harassment in the Workplace

Immigrant Worker Team

Established by highest level official at agency, by former Chair Berrien

Examining EEOC’s enforcement, litigation and outreach efforts on issues affecting workers of foreign national origin.

Collaborating with other agencies

Federal Judge Awards EEOC $7,658,500 in Case Against Farm Labor Contractor Global Horizons

Press Release, May 2, 2016

Involved a pattern or practice of subjecting Thai farmworkers in the state of Washington to a hostile work environment, harassment and discrimination

Judge Shea ordered an enhanced award of $2,500 to each Thai farmworker who was detained by the police because Global confiscated his or her passport.

To the Thai farmworker struck on the head with cane by a Global supervisor pushing him to work faster, Judge Shea awarded additional punitive damages of $16,000 for each month he worked under such abuse. Judge Shea ordered punitive damages here based on a specific finding that Global's discriminatory conduct was "clearly and convincingly" "malicious and with reckless disregard" of these farmworkers' "federally protected rights … health and safety, ethnicity, and financial vulnerability."

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Best Practices

Best Practices

Tailor policies/trainings based on language and reading abilities In co-worker harassment cases with no tangible

employment action, employers can defend against liability by proving:1. Took reasonable steps to prevent harassment

and to remedy harassment once it learned of it AND

2. The victim unreasonably failed to avoid harm or utilize remedial opportunities

BUT, defense not available if employer distributed information in language or format employee can’t understand

ENFORCEMENT PRIORITY NO. 3:Enforcement Guidance on

Developing & Emerging Issues

Emerging and Developing Issues

Currently prioritized:

1. ADA Issues: Coverage, reasonable accommodation, qualification standards, undue hardship, direct threat

Veterans with disabilities

2. Accommodating pregnancy-related limitations; the intersection of the ADAAA and the PDA

3. Coverage of LGBT individuals under Title VII

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Pregnancy Discrimination& Temporary Disability

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. e.g., modified tasks, alternate assignments,

disability leave, or leave without pay

Pregnancy = Disability?

Not a Disability in Itself

But Pregnancy Related Impairments may lead to Coverage

Also Note that Expanded Definition of Disability in ADAAA provides more pregnant women with coverage

Pregnancy & the ADA

New Guidance Issued in July 2014, updated in June 2015

Enforcement Guidance: Pregnancy Discrimination and Related Issues https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

Pregnancy & the ADA

Is a request for leave because of pregnancy really a request for a reasonable accommodation because of an underlying condition covered by the Act?

An otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave (FMLA) as a reasonable accommodation if the additional leave would not impose an undue hardship on the operation of the employer's business.

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ADAAA: Pregnancy-Related Impairments that May Be Substantially Limiting

Pelvic inflammation – may substantially limit walking

Pregnancy-related carpal tunnel – may substantially limit lifting

Disorders of uterus or cervix – may substantially limit reproductive function

Pregnancy-related sciatica – may substantially limit musculoskeletal function

Gestational diabetes – may substantially limit endocrine function

Preeclampsia – may substantially limit cardiovascular or circulatory functions

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EEOC Issues New Resource Document Addressing Issues

Related to Leave and DisabilityPress Release, May 9, 2016

Disability charges filed with the EEOC reached a new high in fiscal year 2015, increasing over 6 percent from the previous year.

The ADA requires employers to provide reasonable accommodations that allow people with disabilities to perform the essential functions of their jobs, unless it would pose an undue hardship for the employer.

One troubling trend the EEOC has identified in ADA charges is the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.

These policies often serve as systemic barriers to the employment of workers with disabilities.

They may cause many workers to be terminated who otherwise could have returned to work after obtaining needed leave without undue hardship to the employer.

EEOC regulations already provide that reasonable accommodations may include leave, potentially including unpaid leave that exceeds a company's normal leave allowances.

New Resource Document:

Employer-Provided Leave and the Americans with Disabilities Act

It consolidates existing guidance on ADA and leave into one place, addressing issues that arise frequently regarding leave as a reasonable accommodation, including the interactive process, maximum leave policies, "100 percent healed" policies, and reassignment. It also provides numerous examples that illustrate existing legal requirements and obligations for both employees and employers.

https://www.eeoc.gov/eeoc/publications/ada-leave.cfm

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Why is the EEOC Interested in Leave as a Reasonable Accommodation?

How does an employer look at intermittent or indefinite leave under the ADA?

FMLA v ADA (rigid v adaptable)

Current Guidance:ADA obligation may go beyond FMLA 12 weeksEmployee only entitled to paid leave to the extent

they have accrued paid leaveEmployer has the prerogative to choose between

equally sufficient reasonable accommodationsCannot penalize employee for being reasonably

accommodatedMust return employee to original position

Disability Lawsuits

EEOC v. United, 693 F.3d 760 (7th Cir.

2012)(cert. petition denied) (non-

competitive transfers under the ADA)

EEOC v. Dillards, (S.D. Ca. 2013) (national

policy requiring employees to disclose

personal information in order to be

approved for sick leave and termination

for violating leave policy) settled for $2

million and non-monetary relief)

EEOC resources on ADA & leave Revised Enforcement Guidance: Reasonable Accommodation and

Undue Hardship Under the Americans with Disabilities Act, www.eeoc.gov/policy/docs/accommodation.html (see "Leave" under "Types of Reasonable Accommodations")

•Enforcement Guidance on Pregnancy Discrimination and Related Issues, www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (see section II.B., ADA and Reasonable Accommodation)

•The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, www.eeoc.gov/policy/docs/fmlaada.html (see "Comparison of ADA and FMLA Leave" and "ADA Compliance When the FMLA Also Applies")

•Enforcement Guidance: Workers' Compensation and the ADA, www.eeoc.gov/policy/docs/workcomp.html (see "Return to Work Decisions" and "Reasonable Accommodation")

•The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, www.eeoc.gov/facts/performance-conduct.html (see "Attendance issues")

Title VII & LGBT Coverage

Language of Title VII does not explicitly include sexual orientation or gender identity/expression.

Title VII prohibits discrimination against an employee “because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2.

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EEOC’s Position on LGBT

Adverse employment actions taken against employees or applicants who do not conform to gender norms or stereotypes is discrimination “because of sex”;

Discrimination against an individual who intends to transition, is transitioning or has transitioned, to another gender-including by changing aspects of his or her biological sex or gender expression is discrimination “because of sex”.

Gender Stereotyping: Conduct founded on the insistence that men or women comply with stereotypical gendernorms.

Here, Hopkins was denied partnership, described as “macho,” and to improve her chances advised to: walk , talk and dress more femininely wear make-up have her hair styled and wear jewelry

The Seminal Supreme Court Case On Gender Stereotyping:

Price Waterhouse v. Hopkins490 U.S. 228, 255-56 (1989)

The Commission issued the Macy decision on April 20, 2012.

Complainant is a transgender woman.

The EEOC held that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition and therefore may be processed under EEOC’s federal sector EEO complaints process.

The Commission’s Official Position

Macy v. Department of JusticeEEOC Appeal No. 0120120821 (April 20, 2012)

Post Price Waterhouse & Oncale:

Some Courts have held that LGB employees are protected from same-sex sexual harassment and gender stereotyping: Nichols v. Azteca Restaurant Enterprises (9th

Cir. 2001) (harassment of restaurant employee based on gender stereotypes).

Rene v. MGM Grand Hotel (9th Cir. 2002) (sexual harassment of gay male hotel employee).

Prowel v. Wise Business Forms (3d Cir. 2009)(gender stereotyping of gay male machine operator).

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Resources on LGBT workplace Issues

EEOC LGBT web page: What You Should Know About EEOC and the Enforcement Protections for LGBT Workers https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

Includes EEOC and other federal agency resources

e.g., OPM Guidance on Employment of Transgender Individuals www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/

ENFORCEMENT PRIORITY NO. 4:Enforcement Guidance on Equal Pay

Enforcing Equal Pay Laws

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

Directed investigations and Commissioner Charges will be encouraged to facilitate enforcement

As with all priorities, EEOC will emphasize this priority because it is in the best position to address the issue

The Equal Pay Act (EPA)

Prohibits unequal pay between employees of the opposite sex for the same work

Includes fringe benefits

Applies when men and women perform substantially equal work requiring similar skill, effort and responsibility

Both men and women are covered under this law

Similar coverage under Title VII against sex discrimination in wages

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Affirmative Denfenses

Pay differentials are permitted when they are based on seniority, merit, quantity or quality of production, or a factor other than sex. These are known as “affirmative defenses” and it is the employer’s burden to prove that they apply.

EEO-1 Pay Data Collection

Feb 1, 2016, EEOC published intent to revise the EEO-1, which annually collects workforce demographic data by race, ethnicity, sex and job category.

Expands on and replaces an earlier plan by the Dept. of Labor (DOL) to collect similar info from federal contractors.

Proposed EEO-1 report would collect, for the first time, certain pay data:• Pay ranges and hours worked to be included

Solicited public comment thru April 1 Proposed EEO-1 can be found at

www.eeoc.gov/employers/eeo1survey/2016_new_survey.cfm

ENFORCEMENT PRIORITY NO. 5:Enforcement Guidance on

Preserving Access to Legal System

Preserving Access

EEOC will target policies and practices that:

discourage or prohibit individuals from exercising their rights, or

impede EEOC’s investigative and enforcement efforts

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Preserving AccessThese include:

Retaliatory actions

Overly broad waivers

Settlement provisions that prohibit filing charges with EEOC or providing information for an investigation / prosecution of employment discrimination

Failure to retain records required by EEOC regulations

Retaliation

It is unlawful to penalize, punish or deny an employment benefit because that person opposed an unlawful employment practice

filed a complaint, testified, assisted or participated in an investigation, proceeding or hearing concerning prohibited discrimination

Requested a reasonable accommodation because of religion or disability

Retaliation Update:EEOC Enforcement Guidance on

Retaliation and Related Issues

Last time guidance issued 1998

• Percentage of retaliation charges has nearly doubled

• Supreme Court and lower courts have issued numerous significant rulings

Most frequently alleged basis

• Private sector – nearly 45% #1 since 2010

• Federal sector – #1 since 2008

Guidance Sets Forth Commission’s Interpretation

Enforcement guidance sets forth Commission’s well-considered guidance on its interpretation of laws it enforces.

Regarding many retaliation issues, lower courts are uniform in their interpretations of relevant statutes.

Where lower courts have not consistently applied the law or EEOC’s interpretation of the law differs in some respect, the guidance sets forth EEOC’s position and explains its analysis.

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Overview of the Updated Retaliation Guidance

Retaliationwhat constitutes “protected activity”

what is a “materially adverse” action that may be actionable as retaliation

causation standards

evidence that may prove or defeat a claim

ADA interference coercion, threats, or other acts that interfere with the

exercise of ADA rights

Remedies (including preliminary relief)

Promising practices for employers

What is retaliation?

Retaliation occurs when employer takes a materially adverse action because an applicant or employee asserts rights protected by the EEO laws (“protected activity”)

Sometimes there is retaliation before any “protected activity” e.g., employment policy itself could be unlawful if

it discourages exercising EEO rights

Preventing Retaliation(“Retaliation: Making it Personal”)

To prevent retaliation from occurring, managers should take the following actions:

Avoid publicly discussing the allegation;

Do not share information about the EEO activity with any other managers or subordinates;

Be mindful not to isolate the employee;

Avoid reactive behavior such as denying the employee information/equipment/benefits provided to others performing similar duties;

Do not interfere with the EEO process;

Provide clear and accurate information to the EEO staff, EEO Investigator, or Judge; and

Do not threaten the employee, witnesses or anyone else involved in the processing of a complaint.

Promising PracticesAlthough each workplace is different, there are many different types of promising policy, training, and organizational changes that employers may wish to consider to minimize the likelihood of retaliation violations. Examples include:

Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer's expectations with user-friendly examples of what to do and not to do.

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Employers should consider training all managers, supervisors, and employees on the employer's written anti-retaliation policy, and sending a message from top management that retaliation will not be tolerated.

Managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.

Employers may also wish to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation. This may help spot issues before they fester, and to reassure employees and witnesses of the employer's commitment to protect against retaliation.

Employers may choose to require decision-makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision. Employers may examine performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize consistency to managers.

New Resources EEOC Enforcement Guidance on Retaliation and Related Issues,

https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

Questions and Answers: Enforcement Guidance on Retaliation and Related Issues, https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm

Small Business Fact Sheet: Retaliation and Related Issues, https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm

The new enforcement guidance:• replaces the Compliance Manual Section 8: Retaliation (1998)• addresses retaliation under each of the statutes enforced by the

EEOC: Title VII, ADEA, ADA, Rehabilitation Act, EPA, and GINA

• addresses the separate “interference” provision under the ADA

ENFORCMENT PRIORITY NO. 6:Enforcement Guidance on

Harassment

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Preventing Harassment: Systemic Enforcement & Targeted

OutreachHarassment claims based on race,

ethnicity, religion, age, and disability combined significantly outnumber sexual harassment claims in the private, public and federal sectors

The Commission believes that targeted outreach to educate employers and employees, combined with systemic enforcement, will greatly deter future violations

EEOC Select Task Force on the Study of Harassment in the

Workplace

Led by Commissioners Chai Feldblumand Victoria Lipnic

Purpose is to study the pervasive issue of harassment in the workplace and suggest tools employers can use for addressing it.

Convened in 2015, the Select Task Force was comprised of 16 members from around the country, including representatives of academia from various social science disciplines, legal practitioners on both the plaintiff and defense side, employers and employee advocacy groups, and organized labor.

Select Task Force on the Study of Harassment in the Workplace

Report of Co-Chairs Chai R. Feldblum& Victoria A. Lipnic

June 2016

https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm

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The Commissioners’ report:

was developed after 14 months of study of workplace harassment with the Select Task Force,

called on stakeholders to double down and "reboot" workplace harassment prevention efforts,

recommended that employers explore new types of training to prevent harassment, including workplace civility and bystander intervention training.

The most important lesson we learned from our study is

that employers

must have

a holistic approach

for creating an organizational culture that will prevent

harassment.

Accountability (excerpt)“One organization I worked with several years ago

asked me if I had new courseware for use with some previously trained managers.

When I asked them what they wanted to accomplish, they indicated that several individuals were continuing

to tell off-color jokes and make inappropriate comments.

While I welcomed the opportunity to be of service, it seemed to me that the issue was not what training to do next but rather why these decision-makers hadn't

taken steps to deal with these individuals' behavior and failure to perform to clear standards.”

Stephen Paskoff,8 Fundamentals of a Civil Treatment Workplace

EEOC Select Task Force on the Study of Harassment in the Workplace

Some observations: Prevention starts at the top – Organizational

Culture• If the issue is important to the boss, it will be

important to everyone else• Studies show organizational conditions, rather than

characteristics of individuals, are biggest indicators of the prevalence of harassment in the workplace (organizational tolerance)

Training• Mandatory and periodic• Bystander training

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Establish strong policy What violates the policy What are consequences Who is responsible (management) Don’t forget social media

Establish well defined complaint procedures Keep the complaining employee in the loop Respond promptly/fairly Report to all parties

Do not retaliate Train investigators (often overlooked) Remember, everyone is watching

EEOC Recommendations Employers should communicate and model a

consistent commitment to that goal.

Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.

Employers should conduct climate surveys to assess the extent to which harassment is a problem in organization.

Employers should devote sufficient resources to harassment prevention efforts, both to ensure that such efforts are effective, and to reinforce the credibility of leadership's commitment to creating a workplace free of harassment.

Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction.

In addition, employers should ensure where harassment is found to have occurred, discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.

Employers should hold mid-level managers and front-line supervisors accountable for preventing and/or responding to workplace harassment, including through the use of metrics and performance reviews.

EEOC Recommendations (con’t)

New Idea to Address Harassment: Bystander Action

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Who is a Bystander?

Bystanders are people who see harassment firsthandPresent during and a witness to an event

Examples:An employee who sees a colleague being

harassed by another employee, the manager or a customer

An employee listening to other employees making inappropriate racial, sexual, etc. comments about employees at happy hour after work

What is Bystander Action?

The action people can take in response to either seeing the harassment or hearing about it after it has occurred.

Why is Bystander Action Important?

Many victims of harassment do not report the harassmentFearful of what will happen when they do report

Fearful that inadequate action will be taken

Bystanders have a powerful role in calling out behavior that crosses the line and supporting colleagues who experience harassment.

Don’t underestimate the positive impact that calling out harassment can have, not only on the person being harassed but on co-workers and the culture of the workplace.

How can Bystanders Intervene?

See the harassment when it occurs. Recognize the behavior for what it is, name it, do not ignore it.

Talk to the person who is doing the harassment, telling him/her to stop the harassment.

Talk to the employer, human resources manager

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How can Bystanders Intervene (con’t)?

Support the person experiencing the harassment by:

Listening to them

Referring them to workplace policies and procedures on harassment

Encourage them to report the problem

Assisting them with finding information to file a complaint

Wellness Programs

Employer Wellness Programs What is a Wellness Program?

Health promotion and disease prevention programs and activities offered to employees as part of an employer-sponsored group health plan or separately as a benefit of employment.

Many ask employees to answer questions on a health risk assessment and/or undergo biometric screenings for risk factors.

Others provide educational health-related information or programs (nutrition classes, weight loss and smoking cessation programs, onsite exercise facilities and/or coaching to assist with reaching goals.

EEOC Issues Final Rules on Employer Wellness ProgramsPress Release, May 16, 2016

Goes into effect in 2007

Describe how Title I of the ADA and Title II GINA apply to wellness programs offered by employers that request health information from employees and their spouses.

The two rules provide guidance to both employers and employees about how workplace wellness programs can comply with the ADA and GINA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act, as amended by the Affordable Care Act (Affordable Care Act).

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EEOC Issues Final Rules on Employer Wellness ProgramsPress Release, May 16, 2016

The rules permit wellness programs to operate consistent with their stated purpose of improving employee health, while including protections for employees against discrimination.

This rule allows employers to provide limited incentives as part of wellness programs that make disability-related inquiries or require medical examinations. Incentives may be financial or in-kind (e.g., time-off awards, prizes, and other items of value).

Other elements of wellness programs: should voluntary, reasonably designed and adhere to the confidentiality provisions under the ADA.

The Issue: ADA and Wellness Programs

ADA allows disability-related inquiries and medical exams of employees as part of voluntary health programs.

Question: Can a wellness program be considered voluntary if an employer offers incentives for an employee to answer health questions or take a medical exam?

Answer: Yes, within limits, and provided certain other requirements are satisfied.

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Acceptable Examinations& Inquiries

A covered entity may conduct voluntarymedical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.

Confidentiality requirement applies to all info. obtained, which must be kept in separate medical files.

The Issue: GINA and Wellness Programs

GINA strictly limits an employer’s right to get genetic information (“GI”), but allows collection of GI for voluntary health or genetic services provided to employees or their family members.

Question: Are inducements allowed for a spouse or children to provide current or past health information as part of a WP?

Answer: Yes, for spouses (not children) within limits and provided certain other requirements are met.

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A Few Things You Need to Know About EEOC’s Final Wellness Rules

Permissible Incentive: 30% of total cost of self-only plan for each the employee and spouse.

All WPs are covered under EEOC’s rules, not just those that are part of employer’s group health plan.

Retaliation for non-participation in WP is prohibited.

Employee with disability entitled to reasonable accommodation under ADA to participate in WP or reach WP outcomes

WP must be “reasonably designed to improve health or prevent disease.”

Strict confidentiality rules

Clear notice requirement in ADA Rules

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Religious Discrimination & Accommodation

EEOC Definition ofReligious Discrimination

Religious discrimination is treating individuals differently in their employment because of their religion, their religious beliefs and practices, and/ or their request for accommodation (a change in workplace rule or policy) of their religious beliefs and practices.

It also includes treating individuals differently in their employment because of their lack of religious belief or practice.

What does “Religion” mean?

The doctrines of any particular religion - OR-

Any sincerely held belief which is held with the force of a religious belief

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Religious Harassment is Illegal

Harassing conduct can include: Coercing employees to participate or not

participate in religious activities,

Verbally harassing an individual because s/he practices a particular religion,

Example of religious harassment: Pulling on a Muslim woman’s hijab (body scarf) and/or head-scarf worn by some Muslims)

Backlash against employees who are, or who are perceived, Muslim/Middle Eastern

From 9/11/2001 to 3/11/2016:

• The EEOC received 10,200 charges of discrimination based on Religion –Muslim.

• For a comparable period of time, 3/11/1990 to 9/10/2001 (eleven years), prior to 9/11, EEOC received 2,480 charges of discrimination based on Religion-Muslim.

Backlash against employees who are, or who are perceived, Muslim/Middle Eastern

From 9/11/2015 to 3/11/2016:• 1,355 charges were filed under Title VII

alleging post-9/11 backlash employment discrimination• Discharge is an issue in 736 charges

and harassment an issue in 672 charges• As of 3/11/2016:• the EEOC found reasonable cause in 146

(10.8% of the 1,355) charges• 164 aggrieved individuals have received

over $4,381,000 in monetary benefits

Religious Accommodation Obligations under Title VII

An employer is obligated to provide a reasonableaccommodation when an employer's policy or preference conflicts with an employee's known sincerely held religious beliefs or practices.

An employer is not obligated to provide an accommodation if it prove it would cause an undue hardship.

A hardship must have more than de minimisimpact on operations or costs.

It must be more than a speculative hardship.

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Examples of Religious Accommodation

Flexible work schedules Modifying workplace practices, policies,

procedures Allowing religion-oriented dress,

grooming and prayer practices.

Samantha Elauf

Supreme Court: the focus is on the employer’s motive, not actual knowledge

Employer can be liable if it, like Abercrombie, has “no more than an unsubstantiated suspicion that” an applicant (or employee) needs a religious accommodation and such suspicion was a motivating factor in the adverse decision

“Title VII does not demand mere neutrality with regard to religious practices [but] gives them favored treatment [by] obligating employers not ‘to fail or refuse to hire or discharge any individual ... because of such individual's’ ‘religious observance and practice.’”

EEOC v. ABERCROMBIE & FITCH, 135 S.Ct. 2028 (2015)

Tips: Best Practices for Employers

Inform employees that employer will make good faith, reasonable efforts to accommodate employees’ religious practices.

Train managers on accommodation needs and responding to requests.

Develop internal policies procedures for addressing religious accommodation requests and monitoring compliance.

Assess each request individually.

Avoid assumptions about a belief or practice, or the “best” accommodation.

Once on notice, initiate good faith efforts to accommodate.

Tips: Best Practices for Employers

Confer with employee about his/her religious needs and proposed accommodation.

Consider all possible accommodations and choose employee’s preference, if possible.

Train employees about the employer’s obligation to provide reasonable accommodations.

Train employees to avoid stereotyping based on dress, grooming, appearance, diet.

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Tips: Best Practices for EmployersDress Codes

Allow employees to wear a yarmulke, heap, hijab, or other religious garb even if it is an exception to a dress policy.

Do not assign employee with religious garb to a non-contact position because of “customer preference” concerns.

Do not assume that atypical dress or an unusual practice will create an undue hardship.

Be flexible and open to making exceptions to policies and practices.

Be creative regarding work schedules, work duties, and selection procedures.

What Should I Do If I Have EEO Questions as an HR Professional

or Employer Representative?

Access EEOC Resources

Visit the EEOC web site at www.eeoc.gov for guidance, fact sheets, EEO updates, and training opportunities.

Contact the EEOC program analyst in your area to ask EEO-related questions.

EEOC Chicago District

Training, Outreach & Technical Assistance:

Maria E. Flores, Program Manager

EEOC – Milwaukee Area Office

Phone: (414) 297-3594

Fax: (414) 297-4133

Email: maria.flores@eeoc.gov