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United States Equal Employment Opportunity Commission Boston Area Office Strategic Enforcement Plan September 10, 2014 Rockland, Maine. Strategic Enforcement Plan. 1. Eliminating barriers in recruitment and hiring 2. Protecting immigrant, migrant and other vulnerable workers - PowerPoint PPT Presentation

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United States Equal Employment Opportunity CommissionBoston Area Office

Strategic Enforcement Plan

September 10, 2014Rockland, Maine

11Strategic Enforcement Plan1. Eliminating barriers in recruitment and hiring2. Protecting immigrant, migrant and other vulnerable workers3. Addressing emerging and developing issues4. Enforcing equal pay laws that target compensation practices that discrimination based on gender5. Preserving access to the legal system6. Preventing harassment through systemic enforcement and targeted outreach

22SEP Priority No. 1: Eliminating Barriers in Recruitment and Hiring

3The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.3

Arrest & Conviction RecordsApril 25, 2012, EEOC issued guidance

Reasserts a legal position the Commission staked out more than 20 years ago. It does not create new law

TVII was amended in 1991 to include disparate impact analysis

44Green v. Missouri Pacific Railroad Company (8th Cir. 1977)Court said we cannot conceive of any business necessity which would automatically place every individual convicted of any offense, except minor traffic violations, in the permanent ranks of the unemployed

5Arrest and Incarceration Rates1 in 17 White men

1 in 6 Hispanic men

1 in 3 African American men66EEOC GuidanceArrest:

Does not establish that criminal conduct has occurredExclusion based on only an arrest is not job related and consistent with business necessityEmployer may make employment decision based on the conduct underlying the arrest if that conduct makes the individual unfit for the position77EEOC Guidance (contd)Conviction:

Will usually serve as sufficient evidence that a person engaged in a particular conductEmployer may not rely on conviction record alone (depending on the circumstance)Private consumer reporting agencies database may not be updatedIndividual may not be aware of, or there may be lack of compliance with court order to seal recordRecord may lack unique informationData may be inaccurateNot currentSpelling (name)/clerical errorsRecord should have but was not expunged

88Business Necessity DefenseThe nature and severity of the offense;

The amount of time that has elapsed since the conviction/or completion of the sentence; and,

The nature of the job held or sought.99SEP Priority No. 2: Protecting Immigrant, Migrant, and Other Vulnerable WorkersThe EEOC will target disparate pay job segregationharassment 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.10SEP Priority No. 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 administrative interpretations11SEP Priority 3 (cont.): Emerging Developing Issue ADA/ADAAACertain ADA issues, includingcoverage reasonable accommodationqualification standards undue hardship direct threat12SEP Priority 3 (cont.): Emerging Developing Issue PDA/ADAAA Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act13SEP Priority 3(cont.): Emerging Developing Issue - LGBT Coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply14LGBT: EEOCs Position 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.

15Resolved EEOC Charge:Charging Party was a male to female transgender womanShe had worked as a sales assistant for Respondent Management told her to dress like a boy even though she had informed them that she was a transgender female during her first week of workManagement repeatedly called her using the pre-fix Mr. and by male names even though she asked them not to use male names or pronounsCo workers respected her and used female pronouns to address herOne manager made a reference to a hot tranny mess in reference to one of the customers in front of Charging Party and other staff, and this was particularly humiliating for herTerminated on September 8, 2008 in retaliation for bringing internal complaintsRespondents own documents state that she was terminated because her complaints had created an unpleasant atmosphere and that she allegedly tried to poison the atmosphere

Outcome: After Respondent submitted its Position Statement the parties successfully privately mediated this charge; Charging Party settled for $240,000

1616Resolved EEOC Charge (contd):

February 2006-Charging Party hired. At that time she went by her male birth name and presented in accordance with her biological sex, maleOctober 2009-Charging Party informed management that she was going to transition to female and asked that the staff be trained on sensitivity around such mattersSome managers responds with: you look like a male, and you have a strong jaw line.Early November 2009, Charging Party started changing appearance, including wearing make-upNovember 10, 2009-Charging party came to work presenting as a female including by wearing a wig and female clothing. Charging Party asked that they refer to her with her female name. Charging Party was asked to go home and was not allowed to come back in that attire for six days.One contractor called her, it and the thing. Another stated I have no use for this freak.Charging Party complained again in March 2010 about harassment and asked for staff trainingRespondent eliminated Charging Partys position in April 2010 in retaliation for her complaints

Outcome: EEOC found cause on the hostile work environment and retaliation claims. Successful conciliation included $225,000 to the Charging Party, a mutually agreeable letter of reference, annual training for 5 years on EEOC statutes including those related to transgender status, issued of a revised EEO Policy and posting a Notice to Employees.

1717Emerging Issue (cont.): GINAGenetic Information Nondiscrimination Act of 2008 (GINA)prohibits use of genetic information to discriminate in employment

GINA prohibits discrimination based on the possibility that someone will acquire a condition in the future

ADA protects individuals who currently have impairments or who are perceived as having impairments, if they meet the definition of disability

Expanded definition of disability under ADAAA makes it far less likely that individuals will be without protection under either statute.1818GINA SettlementsEEOC v. Founders Pavilion Inc., W.D.N.Y., No. 13-6250, complaint filed 5/16/13, alleged that a Corning, N.Y., nursing home violated GINA by asking prospective and current employees for their family medical histories during required pre-employment and annual medical exams. As part of a five-year consent decree resolving the suit in January 2014, the employer agreed to provide a fund of $110,400 for distribution to the 138 individuals who were asked for their genetic information, and to pay $259,600 to the five individuals who the EEOC alleged were fired or denied hire in violation of the ADA or Title VII.

EEOC v. Fabricut Inc., N.D. Okla., No. 13-248, consent decree entered 5/14/13. Settled for $50,000 and injunctive relief. Victim was a temporary employee denied a permanent job after a post-offer medical exam at which she was required to fill out a questionnaire about her family medical history.

19SEP Priority No. 4: Equal Pay Laws The EEOC will target compensation systems and practices that discriminate based on gender. Among the many strategies to address these issues, the Commission particularly encourages the use of directed investigations and Commissioner Charges to facilitate enforcement.20SEP Priority No. 5: Preserving Access to the Legal System The EEOC will also target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC's investigative or enforcement efforts.21Preserving Access to Legal System (cont.)These policies or practices include: retaliatory actions overly broad waivers settlement provisions that prohibit filing charges with the EEOC or providing information to assist in the investigation or prosecution of claims of unlawful discrimination and failure to retain records required by EEOC regulations22SEP Priority No. 6: Preventing Harassment Through Systemic Enforcement and Targeted OutreachHarassment is one of the most frequent complaints raised in the workplace.Harassment claims based on race, ethnicity, religion, age and disability combined significantly outnumber even sexual harassment claims in the private and public sectors.23What? I have a Charge ofDiscrimination?

2424Timeline: When a Charge of Discrimination is FiledCase assessedNotice to the EmployerMediation SettlementInvestigationStatement of PositionRequest for InformationInterviews with WitnessesOn Site VisitsDetermining the Merits of the ChargeNo reasonable causeDismissal and Notice of RightsReasonable causeLetter of DeterminationConciliationLitigation25Tips on EEOC Investigations

Anger accomplishes nothingTry mediationRespond promptlyIf you have questions, ask themIf you need an