Category Archives: EEOC

Can I Ask My Employees If They Have Been Vaccinated?

Male doctor hand wears medical glove holding syringe and vial bottle with COVID-19 vaccine

Contributed by Heather A. Bailey, April 6, 2021

The short answer is: Be careful what you wish for!  During this COVID-19 pandemic, vaccinations have been at the front of everyone’s mind. Now, with the mass rollout of vaccinations across the country, employers’ main questions have been: i) Can we mandate vaccinations for our workforce or, alternatively, ii) can we ask employees whether they have been vaccinated or not (and to show proof of vaccination)? Our Labor & Employment blog has been at the forefront for the first question and provides more information on COVID-19 vaccination developments and what legal risks come into play for employers when mandating the vaccine in the workplace.

Whether you’ve chosen to mandate COVID-19 vaccinations or not, you still may be interested in asking your employees to show proof of their vaccination status.  This simple question comes with its own set of risks. The U.S. Equal Employment Opportunity Commission (EEOC) has given additional guidance in this area in Section K.3 of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”   

The good news is that generally asking your employees for proof of their vaccination status is not considered a medical exam for reasons that include the fact that there are many reasons that are not disability-related that may explain why an employee may or may not have gotten a vaccination.  For example, they may not have one yet because they have been unable to secure an appointment, or they simply do not believe in the vaccination because they think COVID is a hoax.  This is different from someone not getting vaccinated due to a disability or religious belief.  Moreover, this general practice is not a HIPAA violation and HIPAA does not apply in this context.  The rub and risk come if you ask follow-up questions that may elicit whether the employee may have a disability.  Simply following-up with “why do you not have the vaccination yet?” could be treading into that risky territory that touches on whether an employee’s disability is the reason why the employee has not been vaccinated. 

If you find yourself in that territory,  you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act (ADA) (or Title VII, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.”  This is the same analysis an employer must undertake when mandating vaccinations, and it can be a tedious and high standard to meet. View the Labor and Employment Blog for more information on the ADA and employers’ efforts to require mandatory vaccinations and health screenings for employees.

The same is true of follow-up questions that may elicit genetic information (e.g., I cannot get the vaccination due to my family’s history of being immuno-compromised).  (See Sections K.8 and K.9 of the EEOC guidance described above).  Once again, simply asking for vaccination proof does not run afoul of the Genetic Information Nondiscrimination Act (GINA) so long as you stop there in your inquiries.

Practice Tips:

  • Again, be careful what you wish for.  It’s one thing to ask the employee whether they were vaccinated and to show proof, and it’s another to ask why they were not vaccinated. Once you start eliciting disability, religious or genetic information with follow-up questions, you are placing your company at risk of knowing more information than you may have bargained for.
  • You need to ask yourself, first, why do I want to know information regarding why my employees have been vaccinated or not?  What are you going to do with this information?  Having a need and plan for this information will help ensure you have a business justification for why this information is necessary. If you don’t have a plan or a need, you may determine that knowing this information is not really necessary after all.
  • When asking employees to show proof of vaccination, it is good to remind them that you do not want them to include any other medical information that may be listed on their vaccination-related documents.
  • If you determine this is the route you want to take, always work with competent labor & employment counsel to help guide you through the process so you do not step on any landmines (even if it’s just a simple follow-up question). 

The EEOC Abruptly Concludes ACT Mediation Pilot But Keeps Some of the Popular Changes

Contributed by Michael J. Faley, January 29, 2021

After the U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it had extended its ACT Mediation pilot program, the EEOC reversed course yesterday and abruptly concluded pilot programs relating to the EEOC’s conciliation and mediation efforts.  The ACT Mediation pilot, which launched on July 6, 2020, expanded the categories of charges eligible for mediation, generally allowed for mediation to take place throughout an investigative process (rather than only before the investigation begins as is traditionally the case outside the pilot), and expanded the use of technology to hold virtual mediations.

Many employers and attorneys view the EEOC mediation program favorably and generally supported the pilot mediation program. Through the EEOC’s mediation program, first implemented agency-wide in 1999, the agency has conducted more than 240,000 mediations and resolved over 170,000 charges. However, new EEOC Chair Charlotte A. Burrows has been a critic of the pilot program. Burrows commented that she “strongly support(s) the prompt and voluntary resolution of discrimination charges whenever doing so is consistent with our mission….The Commission will continue to strengthen its conciliation and mediation programs in accordance with the overarching goal of preventing and remedying discrimination in the workplace.” 

The EEOC plans to retain some of the practices that it found useful during the pilot program, including the use of video technology to hold virtual mediations whenever possible.  The parties will also be able to request mediation at any point during the administrative process.  Despite these improvements, the EEOC will likely return to its old standard operating procedures and permit mediation in only a limited range of charges.

EEOC Proposes Update to its Compliance Manual on Religious Discrimination and Accommodation

Contributed by John R. Hayes, December 14, 2020

Religious Discrimination claim and pen on a table.

On November 17, 2020, the Equal Opportunity Commission (EEOC) proposed an update to its Compliance Manual’s section on Religious Discrimination. The proposed Manual is open for public comment until December 17, 2020, after which the EEOC will take those comments into consideration before publishing the finalized updated Compliance Manual. The EEOC Compliance Manual is not binding and has no force of law. Nonetheless, employers should take note of the Manual as it provides insight on how the EEOC may consider charges alleging religious discrimination claims in the future, as well as the EEOC’s best practices for employers.

The proposed changes do not change any existing obligations under Title VII. However, the proposed update reflects the EEOC Chair’s emphasis on religious discrimination and accommodation and a more expansive view of exemptions for religious employers under Title VII based upon a number of cases, including U.S. Supreme Court cases, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S.Ct. 1719 (2018), and Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S.Ct. 679 (2019). The new proposed guidance focuses on four areas:

  • Definitions and Coverage – what constitutes a religion, the religious organization exemption, and the ministerial exception;
  • Employment decisions based on religion, including recruiting, hiring, promotion, discipline, compensation, religious expression within the workplace, customer preference, security requirements, and bona fide occupational qualifications;
  • Religious Discrimination, Harassment, and hostile work environment issues; and
  • Religious reasonable accommodation issues.

While it’s impossible to condense the 114 page proposed EEOC Guidance down to a short blog, here are a few points for employers to take note:

Coverage – Religious Beliefs – The EEOC defines “religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” The Supreme Court has made it clear that it is not a court’s role to determine the reasonableness of an individual’s religious beliefs. An employee’s belief, observance, or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few – or no – other people adhere to it.

The EEOC notes that courts have generally resolved doubts about particular beliefs in favor of finding that they are religious beliefs, but that social, political and economic philosophies or personal preferences are not religious beliefs under Title VII.

Exemption for Religious Organizations – Religious corporations, associations, educational institutions, and societies are exempt from Title VII and are permitted to give employment preference to members of its own religion – and discriminate against employees or applicants because of their religion. “Religious institutions” does not just cover churches, but can include religious schools, hospitals, charities and social organizations, and engaging in secular activities does not disqualify an organization. 

The EEOC and courts evaluation of whether an organization is a religious institution is a case-by-case analysis considering a number of factors, with no one factor being dispositive. Those factors include, but are not limited to:

  1. Is it organized for and primarily engaged in carrying out that religious purpose?
  2. Does it hold itself out as having a religious purpose?
  3. Is it for profit or non-profit?
  4. Does it produce a secular product?
  5. Do its articles of incorporation state a religious purpose?
  6. Is it owned, affiliated or supported by a religious entity?
  7. Does it regularly include prayer or other forms of worship in its activities?
  8. Is religious instruction in its curriculum, to the extent it is an educational institution? 

The guidance recognizes the recent court decisions that have expanded the exemption for religious institutions under Title VII and protections under the First Amendment and Religious Freedom Restoration Act.  

Reasonable Accommodations – Title VII requires employers to provide reasonable accommodations based on religion. Common reasonable accommodations include: (1) flexible scheduling for religious practices (e.g. breaks for prayers or days off for religious holidays); (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfers or changes in job assignment (such as a restaurant server being excused from singing happy birthday, and pharmacist excused from providing contraceptives); and (4) modifying workplace practices, policies, or procedures (such as dress and grooming policies).

Undue Hardship – Whether a requested accommodation is an undue hardship is also a case-by-case analysis. The EEOC states that relevant factors may include, “the type of workplace, nature of the employee’s duties, the identifiable cost in relation to the size and operating costs of the employer and the number of individuals who will in fact need a particular accommodation.” The EEOC further goes on to state that “to prove an undue hardship, the employer will need to demonstrate how much cost or disruption” will be involved and that it is not de minimis. In addressing requested accommodations, the EEOC further states that employers cannot rely upon hypothetical hardships, rather than objective information. For example, the EEOC states that accommodating an employee by not requiring them to wear a LGBTQ shirt is reasonable, but an employer may require the employee to attend anti-discrimination and harassment training that discusses the prohibition on sexual orientation discrimination.

In discussing requests for accommodations, employers should engage in an interactive dialogue. The EEOC also provides that this may include balancing an employee’s religious practice with other employees’ religious practices or right to not have religious beliefs imposed on them.

The update signals that the EEOC proposes to apply a more stringent test for an employer to establish that an employee’s requested religious accommodation is an undue burden.

Employers should continue to monitor any ultimate changes to the EEOC guidance and consult with legal counsel to ensure compliance with the laws.

In the mean time, it is important for employers to review their policies to make sure that they cover religious discrimination and reasonable accommodations. Employers should remind supervisors and managers of the obligation to provide religious based accommodations, the process and how to avoid or limit discrimination or harassment based on religion (especially when an accommodation is provided). Finally, it is important for employers to recognize that religious accommodations are not always apparent. For example, mandatory vaccination policies can implicate religious beliefs and result in accommodation requests that employers will have to review.

NEW CALIFORNIA EEO PAY REPORTING LAW TO GO INTO EFFECT MARCH 31, 2021

Contributed by John R. Hayes, October 20, 2020

On September 30, 2020, California Governor Gavin Newsom signed into law Senate Bill 973.  This new pay reporting law applies to private employers in California: (a) with 100 or more employees; and (b) that are required to file an annual Employer Information Report (EEO-1) pursuant to federal law. Beginning March 31, 2021, and on an annual basis, covered employers will have to provide California’s Department of Fair Employment and Housing (DFEH) with pay data by specified job categories and by race, ethnicity and sex. We previously reported on this anticipated legislation, amongst other employment law developments in California, in a prior blog post.

This legislation was enacted in response to the decision by the Equal Employment Opportunity Commission (EEOC) to stop pay data collection, also known as EEO-1 Component 2 reporting, in September 2019.  In the final bill, the California Legislature explained the underlying public policy:

(a) Despite significant progress made in California in recent years to strengthen California’s equal pay laws, the gender pay gap persists, resulting in billions of dollars in lost wages for women each year in California.

(b) Pay discrimination is not just a women’s issue, but also harms families and the state’s economy.  In California, in 2016, women working full time, year-round made a median 88 cents to every dollar earned by men and, for women of color, that gap is far worse.

(c) Although there are legitimate and lawful reasons for paying some employees more than others, pay discrimination continues to exist, is often “hidden from sight,” and can be the result of unconscious biases or historic inequities.

The California law is modeled after the discontinued EEO-1 Component 2 reporting requirement. Specifically, the annual report to the DFEH must include the number of employees—and the total hours they worked—by race, ethnicity, and sex in each of the job categories in the federal EEO-1 report:

(A) Executive or senior level officials and managers;

(B) First or mid-level officials and managers;

(C) Professionals;

(D) Technicians;

(E) Sales workers;

(F) Administrative support workers;

(G) Craft workers;

(H) Operatives;

(I) Laborers and helpers; and

(J) Service workers.

“Employee” as defined in the bill means an individual on an employer’s payroll, including a part-time individual, whom the employer is required to include in an EEO-1 Report, for whom the employer is required to withhold federal social security taxes from that individual’s wages, and whose annual earnings fall within each of the 12 pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics Survey (from $19,239 and under to $208,000 and over).

Employers with multiple establishments must submit a report for each establishment and a consolidated report that includes all employees.  It should also be noted that employers have the option to provide clarifying remarks concerning the information in the report, should they choose to do so.

Some significant questions remain; however, including what will the reporting form look like, how many employees an employer must have in California to be covered, and whether an employer must report on employees who only worked in California for a short time.  Moreover, since the data requested will not take into account both common and organization-specific variables that explain pay differentials (e.g., time with company, education, training, experience, merit, etc.), there is concern among employers that this will lead to increased scrutiny and investigations based on false claims of pay inequities.

Thus, employers with any number of employees in California should begin to examine their pay data, compensation philosophies, and current pay structures to determine if legitimate, non-discriminatory business reasons for any discrepancies exist—or to determine if remedial measures are warranted—prior to the first reporting deadline of March 31, 2021.  Although this legislation is specific to California employers, it also is a spur to action to employers outside that state to proactively review and understand how their pay data would appear should they be investigated for pay disparity claims, or should other states follow California and implement similar legislation.  

EEOC Says It Will Not Renew Pay Data Collection after September Submissions

Contributed by Allison P. Sues, September 19, 2019

Flat 3d isometric business analytics, finance analysis, sales statistics, monetary concept infographic vector. Collage icons: chart graphs, tablet, coins, credit card, dollar banknote, currency signs.

As employers scramble to meet the September 30, 2019 deadline to submit pay data for years 2017 and 2018, they can find some relief in knowing that the EEOC recently stated that it does not intend to collect pay data for 2019 or after at this time. According to the EEOC’s Notice of Information Collection, the EEOC will only request approval from the Office of Management  and Budget (OMB) to renew its collection of Component 1 data (demographic data), but will not seek approval to continue collection of Component 2 data (pay data and hours worked data). 

Since previously requesting approval from the OMB to collect pay data for 2017 and 2018, the EEOC has created the Office of Enterprise Data and Analytics, which developed a more accurate way to calculate the burden on employers when it comes to complying with EEO-1 filing requirements. The EEOC then concluded that it had previously underestimated the burden on employers in submitting pay data and hours worked data. Without knowing the true utility of the pay data collection, the EEOC has opined that the collection’s effectiveness in fighting pay discrimination is “far outweighed” by the burden that the collection imposes on employers.

This announcement does not affect the deadline to submit 2017 and 2018 pay data by September 30. It also does not affect employers’ continuing obligation to submit Component 1 demographic information, as the EEOC has made clear it intends to request approval to continue collecting this subset of data collection. The future of EEOC’s pay data collection is uncertain. For now, we know that the EEOC is not currently seeking to continue pay data collection. But, the agency did mention that if it ever decided to pursue data collection in the future, it would do so using the notice and comment rulemaking and public hearing process pursuant to Title VII. We will keep you posted

Supreme Court Rules Title VII’s Charge Filing Requirement Is Not Jurisdictional…but is Still a Required Rule

Contributed by Carlos Arévalo, August 8, 2019

Supreme Court building

This past February we reported that the Supreme Court agreed to review the Fifth Circuit’s ruling in Fort Bend County v. Davis on the viability of claims brought in federal courts where the claimant had not first filed her claim with the Equal Employment Opportunity Commission (EEOC). On June 3, 2019, the Supreme Court issued its decision holding that Title VII’s charge-filing requirement is a non-jurisdictional claim-processing rule that may be forfeited if not timely asserted. 

Under Title VII of the Civil Rights Act of 1964, an employee is required to first bring his claims of employment discrimination with the EEOC prior to filing suit in federal court. Known as the “exhaustion requirement,” courts have noted that its purpose is to give the EEOC the opportunity to investigate and resolve credible claims of discrimination, and also to provide employers fair notice and a chance to remedy complaints prior to litigation.

In Fort Bend County, the employee initially filed a charge with the EEOC asserting Title VII sexual harassment and retaliation claims. Later, she attempted to add a charge for religious discrimination, but failed to update the formal charge. She filed suit. After years of litigation, only the religious discrimination claim remained. The employer then argued for the first time that the religious discrimination claim should be dismissed because the employee failed to properly file a charge with the EEOC before suing.

Prior to this decision, appellate courts were split on the meaning of the exhaustion requirement. On the one hand, the majority of circuits maintained that the exhaustion requirement was merely a prerequisite to bringing suit, and therefore subject to defenses of waiver and estoppel. On the other, three circuits had ruled that the exhaustion requirement implicated subject matter jurisdiction and could not be waived.

Justice Ruth Bader Ginsburg, in a unanimous decision, settled the question on the side of the majority of circuits and wrote that the charge-filing requirements “do not speak” to a court’s authority or refer in any way to the district court’s jurisdiction, but rather “speak to a party’s procedural obligation…[requiring] complainants to submit information to the EEOC and to wait a specified period before commencing a civil action.” 

What does this mean for employers? It means that while there is still a rule that employees must file a charge and exhaust their administrative remedies before filing a lawsuit, failing to do so will not automatically deprive the court of jurisdiction over the employee’s claim. However, it also means that employees are still required to comply with the rule and may not simply file a lawsuit without first filing a charge of discrimination and exhausting their administrative remedies. More importantly though for employers, it reminds us that if you do not assert failure to exhaust as a defense, it can be inadvertently waived or forfeited by “waiting too long” to raise it. To surely minimize this impact, employers should review the administrative history of pending lawsuits to ensure that an otherwise viable “exhaustion requirement” defense is not inadvertently waived or forfeited by “waiting too long” to raise it.

EEO Pay Data Update: Employers Must Submit Component 2 of the EEO-1 Reports for Both Calendar Years 2017 and 2018 by September 30, 2019

Contributed by Allison P. Sues, May 15, 2019

EEO-1 report filers should prepare to submit Component 2 pay data for both calendar years 2017 and 2018 by September 30, 2019. As we previously reported, the U.S. District Court for the District Court of Columbia previously ruled that employers must submit pay data for calendar year 2018 by September 30, 2019. In this ruling, the court also presented the EEOC with the option to either collect pay data for calendar year 2017 or calendar year 2019. The EEOC recently announced that it will collect pay data for calendar year 2017. Pay data for both 2017 and 2018 will be due September 30, 2019. 

The EEOC will begin collecting employer’s pay data for 2017 and 2018 beginning in mid-July 2019. Filers should continue to use the EEOC’s online portal to report Component 1 data of the EEO-1 reports, which is due by May 31, 2019 unless the employer has received an extension. 

September 30. Vector flat daily calendar icon.

In light of the September 30 deadline, employers should begin preparing to submit their pay data – a new process that, for many employers, requires compiling information from two different systems if payroll records are maintained separately from a human resources information system.  Recent court rulings and EEOC decisions have created a bit of a moving target as employers work to comply with this new EEO-1 reporting obligation. While we await further information and guidance from the courts and the EEOC, it is helpful to look to the previously approved plan that the EEOC had in place in January 2016 prior to the OMB’s stay as a reference point:

  • Who needs to file Component 2 pay data?  EEO-1 filers with 100 or more employees (both in the private industry and federal contractors and subcontractors)
  • What pay data will be collected? The EEOC sought to collect aggregate W-2 data in 12 pay bands for the 10 EEO-1 job categories. The EEOC advised that employers “will simply count and report the number of employees in each pay band. For example, a filer will report on the EEO-1 that it employs 3 African American women as professionals in the highest pay band.” 
  • Will employers also need to report the hours worked by employees? Yes. The EEOC previously stated that hours-worked data will be reported to account for part-time and partial year employment. The EEOC indicated that it would allow employers to use a proxy of 40 hours per week for full-time employees who are exempt under the Fair Labor Standards Act if the employer does not maintain accurate records on hours worked for these employees.
  • Should employers track the staff time spent to collect and report this pay data? Yes. The EEOC had previously indicated that it would request employers to provide the amount of time spent on complying with Component 2 obligations in order to quantify this survey’s burden on employers. 
  • What will the EEOC do with this pay data? The EEOC has previously suggested that it will use the pay data to improve its enforcement efforts to combat pay discrimination, identify trends, and help employers assess their pay policies and practices. While the EEOC represented that EEO-1 pay data will not be used as the sole basis to find discrimination, the agency stated that the data will be used to better focus its resources and investigations, and that a finding of discrimination could come after an investigation. Employers should audit their pay practices in advance of submitting the EEO-1 pay data. Following the audit, employers should remedy any pay inequities for female or minority workers completing the same work as others outside their protected classes, if the disparate pay cannot be easily explained by a legitimate, lawful reason.

Employers, Get Ready! D.C. Court Rules That EEOC Must Collect EEO Pay Data by September 30, 2019

Contributed by Allison P. Sues, May 1, 2019

September 30. Vector flat daily calendar icon.

On April 25, 2019, the U.S. District Court for the District of Columbia ruled that employers must submit pay data by September 30, 2019. For a more detailed background on the case at issue, National Women’s Law Center v. Office of Management and Budget (OMB), please see our blog from last month. As a brief background, years ago the U.S. Equal Employment Opportunity Commission (EEOC) set out to collect pay data from employers in an effort to identify and address pay discrimination against women and minority workers. The EEOC already collects data from employers regarding the sex, race, and ethnicity of employees in various job categories (Component 1 of EEO-1 report). In order to also collect pay data (Component 2 of EEO-1 report), the EEOC needed permission from the OMB.

The OMB initially approved the pay data collection, and then stayed its permission in 2017 bringing the EEOC’s pay data efforts to a halt. Women and minority workers advocacy groups filed a lawsuit in the D.C. Circuit court to vacate the OMB’s self-imposed stay. In ruling on motions, the court asked the EEOC to provide guidance on an acceptable deadline by which it would be able to implement collecting pay data from employers. The EEOC said it would not be able to collect this data any earlier than September 30, 2019, and in doing so would need to rely on an outside contractor to perform the data collection.

On April 25th 2019 Court Order requires the EEOC to do the following:

  • The EEOC must collect EEO-1 Component 2 pay data for calendar year 2018 by September 30, 2019.
  • In addition to the pay data for calendar year 2018, the court ordered that the EEOC must either collect:
    • EEO-1 Component 2 pay data for calendar year 2017 by September 30, 2019; OR
    • EEO-1 Component 2 pay data for calendar year 2019 in the 2020 EEO-1 reporting period.

The EEOC must alert the court by May 3, 2019 if it elects to collect 2019 pay data in lieu of 2017 pay data. 

  • The court ordered that OMB’s approval of EEOC’s pay data collection shall expire on April 5, 2021.

Stay tuned as the EEOC is expected to provide further guidance on its pay data collection soon.  In the meantime, employers should plan on submitting Component 2 of the EEO-1 reports for calendar year 2018 by September 30, 2019, and ensure that it submits Component 1 of the EEO-1 reports for calendar year 2018 by May 31, 2019. 

Update on the EEO-1 Pay Data Reporting

Contributed by Allison P. Sues, April 8, 2019

Flat 3d isometric business analytics, finance analysis

On April 3, 2019, the EEOC informed a federal district court that the earliest it could complete its collection of pay data from covered employers as part of their EEO-1 data reporting obligations is September 30, 2019. The court still needs to rule on the EEOC’s proposed plan and, therefore, employers have not received a final deadline by which to file the required pay data. However, this filing brings employers one step closer to an answer for an issue that has caused them justified concern given the significant time and resources that will be needed to collect this pay data. 

Here is a quick refresher on the course of events that led up to the EEOC’s April 3 filing:

  • Since 1966, the EEOC has required covered employers to submit an Employer Information Report EEO-1 form, providing data on the number of individuals employed by job category, sex, race, and ethnicity (known as Component 1 of the EEO-1 report). More information on Component 1 reporting can be found in one of our previous blog posts.
  • In 2010, the EEOC commissioned a study to identify ways to improve prohibiting pay discrimination and found that there was potential value in collecting pay data in connection with the EEO-1 reports.
  • In order to collect this type of data, the EEOC needed approval from the Office of Management and Budget (OMB). In September 2016, the OMB approved the EEOC’s proposed collection of pay data (known as Component 2 of EEO-1 reports). Under this approval, employers would first be required to submit the required pay data by March 2018.
  • In August 2017, the OMB stayed the implementation of Component 2 of the EEO-1 reports, with instructions that employers still comply with Component 1 reporting requirements. 
  • In November 2017, two non-profit organizations that advocate for equal pay for women and Latino workers filed a lawsuit, National Women’s Law Center et al. v. OMB et al., challenging the stay in the U.S. District Court for the District of Columbia. 
  • In March 2019, the court vacated OMB’s stay of the Component 2 reporting requirement and provided that the OMB’s prior approval of the EEOC’s collection of pay data “shall be in effect.”
  • The court then asked the EEOC to propose how it would undertake and close the collection of pay data now that Component 2 requirements are back in effect. 

That brings us to the EEOC’s recent April 3 filing. The EEOC informed the court that its current data processes are not capable of collecting employers’ Component 2 data.  Instead, the EEOC will need to rely on an outside data and analytics contractor. The EEOC warned that an expedited collection of this pay data may produce poor quality data for the 2018 calendar year, and that quality concerns will be compounded if employers are also required to provide pay data for calendar year 2017. The court still needs to decide several unanswered questions, such as when employers need to submit their pay data, when the EEOC needs to complete its data collection, and whether employers need to submit pay data for 2017. Check back on this blog for updates.

In the meantime, all employers should ensure that they meet the May 31, 2019 deadline for providing Component 1 of the EEO-1 reports and begin the significant effort of preparing the pay data that will ultimately need to be submitted.   

Supreme Court To Review Title VII’s EEOC Administrative Requirement

Contributed by Brian Wacker, February 4, 2019

Black and white gavel

In an important development for employers defending against discrimination claims across the country, the Supreme Court has agreed to review the Fifth Circuit’s ruling in Fort Bend County v. Davis on the viability of claims brought in federal courts where the claimant has not first filed her claim with the Equal Employment Opportunity Commission (EEOC).  There is currently a circuit split in federal appellate courts on this issue.  Regardless of which side the Supreme Court ultimately takes, the Court’s decision will have a critical impact on the steps a claimant must take prior to filing a federal lawsuit – and the employer’s bottom line.

Title VII of the Civil Rights Act of 1964 requires an employee to first bring his claims of employment discrimination with the EEOC prior to filing suit in federal court.  Known as the “exhaustion requirement,” courts have noted that its purpose is to give the EEOC the opportunity to investigate and resolve credible claims of discrimination, and also to provide employers fair notice and a chance to remedy complaints prior to litigation.

However, over time, the appellate courts have diverged on what the exhaustion requirement actually means.  Is it, as the majority of circuits (eight in total) have concluded: the exhaustion requirement is merely a prerequisite to bringing suit, and therefore subject to defenses of waiver and estoppel?  Or, is it as the minority of circuits (three in total) have read Title VII: that the exhaustion requirement implicates subject matter jurisdiction and therefore cannot be waived?

As the Petitioners in Fort Bend noted in their Petition for Writ of Certiorari, resolution of this split in the circuits “is profoundly important.”  They argued that, according to the EEOC’s own statistics, roughly 60,000 charges are filed with the EEOC under Title VII.  Therefore, if the Supreme Court determines these charges are non-jurisdictional, many claimants could be motivated to bring their claims directly in court, forgoing the EEOC and flooding the Courts with additional litigation. 

While that scenario may not be particularly likely, a Supreme Court decision holding the exhaustion requirement to be jurisdictional could have a significant benefit for employers defending against these claims.  Characterizing the exhaustion requirement as jurisdictional could provide employers an additional vehicle to seek dismissal of claims not supported by an EEOC charge much earlier in the course of litigation than might otherwise be possible.  Characterizing exhaustion as jurisdictional also means that employers could challenge whether exhaustion occurred later on in litigation—and even for the first time on appeal.  On the other hand, if the Supreme Court sides with the majority of federal appellate courts, employers may have less of an opportunity to resolve discrimination claims through the EEOC’s investigation and dispute resolution procedures—and without any litigation at all.  In short, if the exhaustion requirement is ruled not to be jurisdictional, employers could well be forced into immediately defending a host of additional – and costly – federal claims, which the “exhaustion requirement” was arguably designed to avoid.

There is no schedule yet for briefing and argument in Fort Bend.  However, we will continue to monitor the case and update as it progresses.