U.S. Equal Employment Opportunity Commission (EEOC)

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.

25114193 - your comment counts words on a red suggestion box to illustrate the value and importance of feedback, opinions, suggestions and brainstorming ideas

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.

25114193_s

 

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.

 

43369264_sI am pleased to be a co-presenter at this webinar on September 9, 2015.  The EEOC and NLRB have been challenging severance provisions that they feel may stop an employee or former employee from cooperating with a charge filed with the agency.  The SEC also has recently been asking companies to provide copies of their separation agreements as part of its investigation of alleged wrongdoing.

We will discuss these recent challenges, as well as identify contract provisions that have been labeled problematic and provide practical drafting tips to avoid the wrath of these agencies.

If you would like to attend this webinar, you can register by clicking this link.  You’ll want to make sure you use this link as I can offer attendees 50% off the normal registration fees.

Hopefully, you can join us!

38570848_sIn the vein of a shameless personal plug, I will be speaking as part of a panel in an upcoming Strafford live webinar, “Accommodating Pregnant Workers After Young v. UPS: Navigating New Obligations Absent Clear Court Guidance” scheduled for Wednesday, July 15, 1:00pm-2:30pm EDT.

Our panel will discuss how to reconcile the Court’s vague new standard with EEOC guidance and differing state laws regulating workplace accommodation of pregnancy and pregnancy-related conditions, and offer best practices for crafting workplace policies that avoid Pregnancy Discrimination Act violations.

We will review these and other key issues:

  • What factors might constitute legitimate, nondiscriminatory, nonpretextual reasons for denying an accommodation?
  • Under what circumstances must employers accommodate pregnant employees?
  • What steps should employers take when engaging in the “interactive process”.

I hope you’ll join us.

For more information or to register >

Or call 1-800-926-7926 ext. 10
Ask for Accommodating Pregnant Workers After Young v. UPS on 7/15/2015
Mention code: EA1DU2-4TO1AY

23337822_sToday the U.S. Supreme Court reversed a decision by the Tenth Circuit Court of Appeals that had previously held that Abercrombie could not be held liable for not accommodating an applicant who wore a head scarf to her interview but never mentioned her Muslim faith.  The Tenth Circuit had accepted Abercrombie’s argument that the mere fact that she wore the hijab to the interview did not mean it was aware that she needed an accommodation of Abercrombie’s “Look Policy.”

The Tenth Circuit had held that where an accommodation is requested for religious reasons, an employer must not only be aware of the need for an accommodation but also that it was due to a particular religious faith.

In today’s decision in EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court noted that knowledge of the need for an accommodation is not necessary but simply must demonstrate that an applicant’s need for an accommodation was a motivating factor in the employer’s decision.  This may seem confusing without reading the opinion in full.

I mean, how can an accommodation be a motivating factor if the employer did not know of the need for an accommodation?

Once you dig into the Court’s reasoning, the decision is actually more common sense than it appears on its face.  In short, whether an employee knows of a need for accommodation or simply assumes that one might be necessary, if the desire to avoid accommodating that practice is a motivating factor in not hiring the applicant, then that is a violation of Title VII.

To understand the Court’s decision, a brief review of the facts is helpful.   Samantha Elauf applied for a position with Abercrombie.  At the interview, Ms. Elauf wore a head scarf.  There was no discussion during the interview about the head scarf or whether she wore it for religious reasons.  After the interview, the manager who interviewed her, Heather Cooke, was concerned that the head scarf violated Abercrombie’s “Look Policy” which prohibited the wearing of caps.  When Ms. Cooke consulted with the District Manager, she advised that she thought that Ms. Elauf wore the head scarf for religious reasons.  The District Manager advised that the head scarf would conflict with the Look Policy and Ms. Elauf was then rejected for the position.

In its analysis the Supreme Court noted that the disparate treatment provision of Title VII forbids employers from failing to hire an applicant because of religion. Thus, the provision prevents religion from being a motivating factor in an employer’s decision not to hire an applicant.

When viewed in this light, today’s decision is not so different from cases interpreting the disability portions of Title VII.  For example, if an applicant who came into an interview for a position involving physical labor had a limp, the employer assumed because of the limp that the employee would need accommodations, and the employer did not want to create light duty positions so it rejected the applicant, it is not hard to see how this would be disability discrimination due to the assumption alone.

In this case, Abercrombie assumed (correctly) that Ms. Elauf wore the head scarf for religious reasons and as such would need an accommodation from its Look Policy.  Since Abercrombie’s sole reason for not hiring her was that it did not want to create an exception to the Look Policy, Ms. Elauf could show that her need for an accommodation was a motivating factor in the decision not to hire her even though she had never specifically asked for an accommodation.

Today’s decision is not so broad that it means that not having knowledge of a need for an accommodation may never be a defense.  If the employer has neither knowledge of nor an assumption that a religious practice requires an accommodation, an employer may still be able to raise a defense to a failure to accommodate claim.  For example, if an employee comes to a manager and simply requests time off without giving a reason why, it may be possible to argue that the cannot show that the denial of the time off was on account of his or her religion.

Employers should keep this decision in the backs of their minds when evaluating such requests.  If, for example, an employee is telling you that he or she cannot work any Friday after 4 pm, then a prudent employer should at least ask why before denying the request.  It is possible that the employee, who is Jewish, is making the request so that he or she can observe the Sabbath, or that the employee has a second part-time job that is scheduled for every Friday evening.  In the first scenario, the employer will have to evaluate whether it can reasonably accommodate the employer.

8081950_sSometimes when I counsel employers they ask why they cannot just take an ostrich approach, i.e., stick their head in the sand and not go looking for issues.  The problem with that approach is that, given my example above, it is not hard to imagine that an employee would claim that the manager was aware that he or she was Jewish and thus, should have assumed that the request was related to an observance of the Sabbath.  That then becomes a factual issue that is likely not going to get resolved on summary judgment.