U.S. Equal Employment Opportunity Commission (EEOC)

TSpring Cleaninghe equinox has come and went, meaning warm weather is thankfully approaching. This also means spring hiring season is here for many employers. However, caution is advised. Given the ease of un-vetted online job postings, many forget that these posts are legal minefields (and public too). Federal, state, and local agencies (as well as plaintiffs’ attorneys) can see job ads just as well as potential candidates. As you pack away the winter coats, make sure to dust off your job posts and remove any potential legal snares.

One of the most common issues we see regarding job ads is “preference” language. The Equal Employment Opportunity Commission (“EEOC”) explicitly states that it is “illegal for an employer to publish a job advertisement that shows a preference . . . because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.” While this may seem obvious, inadvertent word usage that may show a preference for one protected category over another is often overlooked.

For example, the EEOC notes that the phrase “recent college graduates” may indicate a preference for younger employees, and may violate the law. In addition, historically gendered job titles are frequently used in the hospitality industry, such as “waitress,” “hostess,” or “delivery boy.” Government agencies will often argue that such terms indicate a preference for one sex, gender, or age over another, even if all sexes, genders, and ages were welcome to apply. Moreover, legitimate job requirements, such as “must be able to lift ‘x’ pounds,” must be evaluated with legal counsel to ensure that disability and accommodation laws are complied with, as well as to ensure no overtime exemption misclassification issues are created.

In addition, in some states and localities additional discrimination protections are offered above those available under federal law. The New York City Commission on Human Rights (“NYCCHR”) issued notable guidance in 2015 on the treatment of transgendered employees and applicants. The NYCCHR has since aggressively investigated offending job advertisements that indicate a proclivity toward traditional gender categories, among other problematic conduct. (More information on NYC’s transgender guidance is available here.)

However, remember that simply sanitizing one’s advertisements is not enough. Hiring practices matter too. The EEOC notes that “an employer’s reliance on word-of-mouth recruitment . . . may violate the law” where the newly hired employees mirror the current workforce.

In sum, it is critical to review all job advertisements for problematic language, and train human resources and hiring personnel to be aware of these issues. Discriminatory job language can cause unneeded headaches with federal, state, and local governmental agencies, or that job posting may be “Exhibit A” in your next lawsuit.

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A notable case caught our eye recently coming out of the United States District Court for the Middle District of Florida filed by the Equal Employment Opportunity Commission (“EEOC”). Namely, The EEOC sued CRST International, Inc. (“CRST”) claiming that it, among other things, violated the Americans with Disabilities Act (“ADA”) by failing to accommodate and retaliating against a prospective truck driver.

The new driver allegedly requested the use of a prescribed emotional support animal to mitigate post-traumatic stress and mood disorder. CRST purportedly told the new driver simply to leave his dog at home and refused to provide an accommodation, citing unbendable company policies, and effectively rescinded his employment offer. Unfortunately, usually these policies must bend, or at the very least the possibility explored.

While the CRST case is in its early stages, and no court decisions have yet been issued, this complaint serves as a great illustration of just how far reaching the disability discrimination laws are. Here many employers would scoff or summarily dismiss the seemingly unworkable request of having a service animal in a trucking business. However, the CRST complaint reminds us of the potential disability accommodations that employers must consider and make. Regardless of the nature of the requested accommodation, the employer is, at the very least, required to engage in the interactive process with the employee and determine what, if any, reasonable accommodations can be made. Otherwise, you may end up on the wrong side of an EEOC lawsuit alleging ADA retaliation and failure to accommodate.

Please remember that when an employee or prospective employee requests a workplace disability accommodation in order to perform his or her job, an employer generally must consider the accommodation and, if it can be implemented without undue hardship, it must be granted. Anytime an accommodation request is received, never dismiss the request out-of-hand. Make sure to talk to your in-house human resources department or legal department, or involve outside counsel if necessary, to determine your legal obligations. Also, note that your state or local laws may provide additional protections beyond the ADA.

Employers take note:  the EEOC has issued an updated Strategic Enforcement Plan (“SEP”) for fiscal years 2017-2021.

What’s a Strategic Enforcement Plan?

The EEOC’s SEP describes the areas that will be a priority focus for its enforcement efforts over a particular period of time.  In some instances, it describes a particular component of the employment relationship (for example, the application process) that it will scrutinize more.  In other instances, it describes a particular basis of discrimination that it will focus on (for example, employees who are or are perceived to be Muslim, or LGBT employees).  Ultimately, the SEP is best understood as a kind of statement of intent–i.e., where the EEOC will focus resources in the coming years.

What Isn’t a Strategic Enforcement Plan?

The EEOC’s SEP is not a statement of exclusion.  That is, just because a specific workplace issue or protected characteristic is omitted (or not emphasized) within the SEP doesn’t mean the EEOC will ignore that particular issue or characteristic.  Employers should expect that the EEOC will continue to enforce all of the relevant discrimination laws on the books.  The SEP merely acts as a guide for the EEOC to focus its enforcement efforts.

What Will the EEOC’s Priorities Be Under the Updated Strategic Enforcement Plan?

The EEOC’s SEP has identified six national priority areas for enforcement in FY 2017-2021:

1.  Eliminating Recruitment/Hiring Barriers.  Moving forward, the EEOC will put additional emphasis on recruitment and hiring.  This includes exclusionary policies and practices.  In addition, the EEOC has noted it will focus on job channeling/steering and job segregation; restrictive applications; pre-employment tests/screenings and background checks that affect African-American and Latino employees; date-of-birth inquiries that affect older employees, and medical questions that affect people with disabilities. On the issue of restrictive applications, the EEOC has also highlighted online application systems that are inaccessible to applicants with disabilities.

2.  Protecting Vulnerable Workers and Underserved Communities.  Evaluating local issues and concerns, the EEOC’s district offices will identify particular vulnerable workers and underserved communities for enforcement attention.  As an example, the EEOC notes that some offices may target discrimination against Native American employees for increased focus.

3.  Addressing Selected Emerging and Developing Issues.  These include: qualification or leave policies that discriminate on the basis of disability; accommodations for disabilities and pregnant workers; protecting LGBT employees from sex discrimination; addressing discrimination laws in the context of evolving job market structures/relationships (for example, temps, staffing agencies, independent contractor relationships, the on-demand or “gig” economy, etc.); and “backlash discrimination” against Muslims, Sikhs, persons of Arab, Middle Eastern, or South Asian descent (or perceived members of these groups).

4.  Equal Pay.  The EEOC will continue its efforts to address sex-based pay discrimination under Title VII and the Equal Pay Act and will also focus on pay practices that discriminate on any protected basis.  In particular, the EEOC has noted pay discrimination on the basis of race, ethnicity, age, and disability remains an issue that it intends to continue targeting.

5.  Preserving Access to the Legal System.  The focus here will be on employer policies or practices that it perceives as limiting employee rights, discouraging employees from exercising their rights, or impeding the EEOC’s efforts.  In addition to retaliation, the EEOC has indicated it will focus on overly broad waivers/releases, certain mandatory arbitration agreements, and employer failure to retain required applicant/employee data.

 6.  Preventing Systemic Harassment.  The EEOC notes that over 30% of charges allege harassment (and that “the most frequent bases alleged are sex, race disability, age, national origin and religion, in order of frequency”).  The EEOC has stated it will seek to promote “holistic prevention programs” that it believes will serve as a deterrent to violations.

Of course, this brief summary is not exhaustive; click here for the full document.  Ultimately, the updated SEP is a reminder for employers to review their policies and practices as 2016 draws to a close, in order to ensure compliance.

Back in February, our Labor and Employment Department issued a Client Alert regarding efforts by the Equal Employment Opportunity Commission (“EEOC”) to revise and update employer responsibilities on  Form EEO-1, a longstanding joint information collection of EEOC and the U.S. Department of  Labor’s Office of Federal Contract Compliance Programs (“OFCCP”).  Currently, the form seeks from covered employers information on race, ethnicity, sex and job category.

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The proposed changes, which would be fully implemented in 2018, would also require that salary information be provided for each employee.  The rationale behind the addition would be to uncover evidence of a pay gap between covered classifications and their peers.

Ahead of a second public comment period, the EEOC today released a copy of the new proposed form.  You may view the form here.

Our advice now is the same now as it was then.  Covered employers should begin by finding a mechanism to easily harvest the data, and address any technological deficiencies that hinder that collection as soon as possible.  There is uncertainly, especially given that it is a presidential election year, that the proposed changes will come to fruition.  But if the changes are ultimately implemented, employers need to begin to address the issue now so as not to be caught flat-footed.

As always, feel free to contact us with any questions.

Earlier this month, the US Equal Employment Opportunity Commission (EEOC) announced a proposal to update its guidance on employment discrimination based on national origin.   The proposal, which marks the EEOC’s first update to this particular guidance in 14 years, contains important information for employers and is available for public comment until July 5, 2016.

What’s National Origin?

Federal regulations define national origin discrimination as including employment discrimination that occurs “because of an individual’s, or his or her ancestor’s place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.”  29 C.F.R. § 1606.1.

The regulations note that the EEOC defines national origin discrimination broadly, and that the EEOC will pay particular attention to charges alleging discrimination based on national origin considerations,  including:

  • marriage to or association with persons of a national origin group
  • membership in, or association with, an organization identified with or seeking to promote the interests of national origin groups
  • attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group, and
  • the individual’s name or spouse’s name being associated with a national origin group.

So What Does This Mean for the Workplace?

At the outset, it’s important to remember that EEOC guidance is not necessarily binding on courts.  In addition,  since this guidance has not yet been finalized, revisions remain a possibility.  That said, the proposed guidance provides an illuminating look into how the EEOC approaches enforcement on this issue.

Some noteworthy issues raised in the proposed guidance include:

  • Accents.  Employers tread in dangerous waters if they use accents as a basis for making an adverse employment decision, as accents and national origin are often linked.  While employment decisions may legitimately be based on accents, the EEOC proposed guidance states that this will require the employer to show that “effective spoken communication in English is required to perform job duties and the individual’s accent materially interferes with his/her ability to communicate in spoken English.”
  • Word-of-Mouth Recruiting.  Word-of-mouth recruiting may violate Title VII if the employer’s actions have the purpose or effect of discriminating on the basis of national origin.
  • Social Security Number (SSN) Screening.  Employers who have a policy or practice of screening out job candidates or new hires who do not have a social security number may constitute national origin discrimination, if work-authorized but newly arrived immigrants and new lawful permanent residents of a particular ethnicity or national origin are disproportionately affected.
  • Customer Preference.  Employers aren’t permitted to use the preferences of customers, coworkers, or clients as the basis for discriminating in violation of Title VII.  The EEOC notes that company “look” or “image” policies, under certain circumstances, can act as a proxy for discriminatory customer preferences; adverse employment actions taken according to such policies can serve as the basis of national origin discrimination.
  • Job Segregation.  An employer may not use national origin as the basis for assigning (or not assigning) individuals to specific positions, locations, or geographic areas; nor may an employer physically isolate, deny promotions to, or otherwise segregate individuals into certain roles due to their national origin.
  • Perceived National Origin.  It’s important to note that employer actions may not have the purpose or effect of discriminating on the basis of national origin whether that is an individual’s real or perceived national origin.
  • English-Only Rules.  Work rules or practices requiring the use of English may be national origin discrimination as a person’s primary language is often intertwined with cultural/ethnic identity.  The EEOC operates under the presumption that rules requiring workers to speak English at all times (including during lunch, breaks, and other personal time while on employer premises) violate Title VII.

These items are just a sampling of the information contained in the EEOC’s proposed guidance update.  The full document is available here.

 

 

Just days after North Carolina lawmakers passed the controversial Public Facilities Privacy & Security Act (“Act”), the American Civil Liberties Union (“ACLU”) has filed a lawsuit challenging the law.

6276693_sAlthough the title of the Act seems to imply that it just addresses the use of public restrooms, the law actually goes far beyond that.  Opponents of the Act, say that it is a sweeping attack on the LGBT community.

North Carolina legislators passed the Act after the city of Charlotte enacted an ordinance making it illegal to discriminate against people on the basis of sexual orientation and gender identity. The Act not only states that people must use restrooms assigned to their “biological sex,” it prohibits any municipality from passing certain laws regarding employment.  This means that local governments cannot pass anti-discrimination laws or laws that affect the wages of employees such as minimum wage hikes.

Many employers may like the idea of uniform state-wide consistency in the laws.  However, many businesses have already publicly condemned the law.  In some states, such as Georgia, corporations’ attacks on such laws have doomed them.  As of today, although some businesses have blasted the law, others have publicly supported it.  So far, no corporation has actually threatened to pull its business or refuse to conduct future business in the state.  It is unclear whether corporate pressure, on either side, will affect the political process.

It is also questionable whether this law as drafted will be upheld. It will be interesting to see if the courts expand the Obergefell v. Hodges decision to strike down the law as being unlawful discrimination.  The EEOC has been taking a very aggressive position that sexual orientation and gender identity are protected under Title VII’s prohibitions on gender discrimination.  If the EEOC is right that the existing federal laws prohibit discrimination on the basis of sexual orientation and gender identity, then the Act not only implicates Title VII, it implicates Title IX since it applies to public universities.  Schools found to be in violation of Title IX can lose federal funding.

Although the EEOC has been pushing the boundaries of Title VII interpretation, so far the issue of whether Title VII does in fact outlaw discrimination based on sexual orientation has not been addressed by the Supreme Court.  North Carolina lawmakers may have unwittingly pushed this issue to the Supreme Court

 

As many of you probably know, the EEOC has issued a proposed rule that, if adopted, would require significant changes to the EEO-1 reporting requirements.  The rule proposal is designed to help the EEOC gather data related to pay discrimination claims.  If adopted, it will require employers who are required to complete annual EEO-1 reports to submit pay data for all employees in addition to the number of employees in each racial classification.

This rule is likely going to increase the number of investigations and complaints filed alleging pay disparity.  The EEO-1 reports, by themselves, will be used in a broad sense to identify statistical anomalies that may trigger an investigation.  Missing from that raw data will be any legitimate reasons for pay disparities, such as experience and education levels.  However, employers will be required to comply with what could be a lengthy investigation process.

The comment period is currently scheduled to end on April 1, 2016.  Recently, ten Republican senators sent a letter to the EEOC asking for the comment period to be extended 90 days.  No word yet on whether the extension will be granted.

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Today’s post comes to us courtesy of Brian McGinnis, an associate in our Labor and Employment Department in our Philadelphia office.

17755599_sThe Centers for Disease Control and Prevention estimate that over 1.2 million Americans live with an HIV-positive health status.  Under the Americans with Disabilities Act (“ADA”), HIV-positive status qualifies as a disability, providing a variety of legal protections to HIV-positive employees who work for qualifying employers.  These provisions include protections against discrimination and harassment on the basis of an employee’s HIV-positive status.

The Equal Opportunity Employment Commission (“EEOC”) recently addressed this issue, publishing a fact sheet entitled, “Living with HIV Infection:  Your Rights in the Workplace under the ADA.”  This fact sheet provides guidance to HIV-positive employees on a variety of their rights under the ADA, particularly the process of seeking a reasonable accommodation from their employer.

During the process of seeking a reasonable accommodation, the EEOC notes that employees may not need to disclose their HIV-status;  rather, it may be sufficient for employees to state they have an immune disorder.  Whether an employee discloses his or her HIV-positive status or provides a more generalized description, it is critical that employers keep this information confidential.

The EEOC suggests a variety of proposals that could qualify as a reasonable accommodation, depending on the circumstances, including:  modified schedules (including frequent rest breaks, bathroom breaks, as well as flexible time to schedule doctors’ or other medical appointments), unpaid time off for required treatment or recuperation, ergonomic office furniture, and permission to work from home, among others.  This list, however, is non-exhaustive, and the EEOC encourages employees to request accommodations specific to their unique needs according to their condition.

It is also critical for employers to know they may face ADA liability if they take certain actions toward HIV-positive employees during this process on the basis of myths or stereotypes about HIV/AIDS.  This reality is particularly noteworthy, given the history of misinformation, stigma, and stereotyping that has surrounded HIV/AIDS since it first came into the public eye in the late 1970s and early 1980s.

Because a broad range of reasonable accommodations may be sufficient for HIV-positive employees and because of the historic stigmatization of HIV-positive people, employers should consult knowledgeable counsel to ensure effective and appropriately sensitive management of the reasonable accommodations process.  Doing so will not only help employers meet their legal obligations under the ADA, but can also promote a beneficial resolution for both employer and employee.

FrigidMany of us are currently buckling in for a frigid holiday weekend (except for the lucky folks down in the south and southwest).  However, recent data issued by the U.S. Equal Employment Opportunity Commission (EEOC) shows that charges of discrimination continue to remain white hot (despite the temperature).  For the 2015 fiscal year, the EEOC clocked an uptick of total charges to 89,385 (up from 88,778 in 2014).  While this aggregate number is still slightly lower than the record-breaking annual charge rates just a few years back, charge rates remain historically high from a decade ago.  State-by-state charge rates are also available here for anyone interested.  The most common discrimination claim nationally (other than retaliation) is race (34.7% of all charges) followed by disability (30.2%), sex (29.5%), and age (22.5%).  (Note that charging parties commonly assert claims under multiple protected categories.)

Notably, retaliation claims remain the largest category altogether, accounting for a whopping 44.5% of all charges asserted.  This is unsurprising since retaliation claims, as a percentage of total EEOC charges, have grown every year since 2002.  This trend is also extremely likely to continue.  As employees become more and more aware of their available claims, retaliation is the easiest allegation to assert, and even control.  As U.S. Supreme Court Justice Anthony Kennedy pointed out in his seminal retaliation opinion, Texas Southwestern Medical Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013), “an employee who knows that he or she is about to be fired . . . might be tempted to make an unfounded charge . . . ; then, when the unrelated employment action comes, the employee could allege that it is retaliation.”  Id. at 2532.

This gamesmanship, coupled with the difficulty for an employer to prove that a complaint of discrimination and adverse action are unrelated, makes retaliation claims incredibly easy for an employee to maintain.  Although the EEOC recognizes this trend, and that its guidance on the subject has not been updated since 1998 (despite significant intervening U.S. Supreme Court decisions), its recent proposed retaliation guidance, if implemented, will be even more employee friendly than ever and continue to encourage yet more retaliation claims.  Employers must continue to brace themselves for this trend and ensure that all company policies and training procedures adequately address the EEOC’s most active issues.

Today’s post comes to us courtesy of Martin Burns, an associate in the Roseland office:

According to a recently filed lawsuit, Hajra v Wawa, by a former employee of Wawa, Inc., his manager singled him out and enforced an English-only policy because he spoke with an accent.  The former employee claims that the manager required that he only “speak English” while on the job because no one understood what he was saying.  A native of Kosovo, he alleges that the manager repeatedly instructed that he speak English despite only speaking that language while at work.  From the claims in the lawsuit, it does not appear that Wawa has formally implemented an English-only workplace policy or that the manager gave similar instructions to other employees.

26190870_sPutting aside the allegations that the manager singled out the employee and purportedly treated him differently because of certain characteristics associated with his national origin, could Wawa, or any other employer, require that its employees only speak English in the workplace?

The answer to that question depends upon the circumstances in question.  The United States does not recognize an official language.  Many states have existing official language laws.  Although New Jersey does not have any such law, there is a bill in committee in the New Jersey State Senate that if adopted and signed into law would designate English as the state’s official language.  Despite a lack of consensus on this issue by our federal and state political bodies, English-only work rules are not unheard of and can be legal at times.

It is clear that an English-only rule adopted by an employer must be implemented for nondiscriminatory reasons.  Furthermore, prohibiting certain foreign languages and not all such languages is unlawful.  The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that any such rules should relate to specific circumstances and can be justified by business necessity, such as in case of emergencies, promoting efficiency or to monitor the performance of employees whose job duties require communication where a supervisor only speaks English.  Even if the employer does not have a discriminatory intent or motive, however, federal law has been interpreted as prohibiting both intentional and unintentional discrimination against persons in protected classes.  According to the EEOC, employers therefore need to weigh business justifications against the possible discriminatory effects of the rule and should consider alternatives to an English-only rule that would be equally effective in promoting safety or efficiency.