Category Archives: EEOC

EEOC Issues New Guidance on Title VII’s Prohibition of Sexual Orientation and Gender Identity Discrimination

Contributed By Allison P. Sues, July 16, 2021

Employment law books and a gavel on desk in the library.

On June 15, 2021, The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity.”  This resource reviews the impact of the Supreme Court’s Bostock v. Clayton County case and provides the EEOC’s position on what constitutes unlawful discrimination based on sexual orientation and gender identity.  The EEOC’s answers to key questions on this issue are summarized below. 

Does Title VII’s prohibition against sex discrimination extend to treatment based on sexual orientation or sexual identity?

Yes. In June 2020, the Supreme Court unequivocally held that discrimination based on sexual orientation or gender identity is discrimination based on sex and, therefore, prohibited under Title VII. In Bostock, the Court extended Title VII’s legal protections to LGBTQ+ employees after examining three different discrimination claims where employees claimed that they were fired after their employers learned that they were gay or transitioning from one gender to another.  As with all Title VII protections, employers cannot take any adverse employment action –including decisions involving hiring, firing, promoting, disciplining, training, or providing compensation or other benefits – based on the sexual orientation or gender identity of an employee or applicant. 

Can an employer’s discriminatory action toward an LGBTQ+ employee be justified by customer or client preference?

No.  Even if a company’s clients or customers have a preference to work with people of certain sexual orientations or gender identities, an employer cannot refuse to hire, fire, or reassign an employee based on their LGBTQ+ status. Similarly, an employer cannot assign LGBTQ+ employees to positions that do not interface with the public based on their protected status.

May an employer make employment decisions based on a belief that the employee acts or appears in ways that do not conform to stereotypes about women or men?

No. Even if an employer does not have knowledge of the employee’s gender identity or sexual orientation, employers are not allowed to discriminate based on gender stereotypes.  For example, an employer cannot demote a male employee because it perceives him to behave in stereotypically feminine ways. Relatedly, an employer may not require a transgender employee to dress in accordance with the employee’s assigned sex at birth.  Employers should not have any gender-specific expectations about appearance.

May an employer host separate, sex-segregated bathrooms, locker rooms, or showers for men and women?

Yes.  However, the employer must not prohibit any employee from using the bathroom, locker room, or shower for the gender with which they identify.  For example, transgender women should be allowed to use the women’s bathroom.

Could it be considered unlawful harassment to use names or pronouns inconsistent with an individual’s gender identity?

Yes, possibly. As with all other hostile work environment claims, the harassment must be sufficiently severe or pervasive to be actionable.  If an employer accidentally misuses an employee’s pronoun or forgets to use an individual’s name in isolated incidents, that may not rise to the level of a Title VII violation.  However, an employer that intentionally and consistently refuses to use an employee’s correct name or pronouns may be deemed to be unlawfully harassing that employee. 

More Tweaks to the IL Equal Pay Act

Contributed By Beverly Alfon, July 1, 2021

On June 25, 2021, Governor Pritzker signed into law additional amendments to the IL Equal Pay Act of 2003. 

March 2021 Amendments (Recap)

As outlined in our March 23, 2021 blog article, Will Employers Have to Give 1% of their Total Gross Profits to the State of Illinois? Gov. Pritzker Signs into Law Unprecedented Changes to IL Equal Pay and Corporate Laws, the March amendments to the Act require businesses with 100 or more employees to obtain certification of compliance with the Equal Pay Act from the IL Department of Labor (IDOL).

The certification process requires employers to submit an application that contains a statement affirming compliance with the equal pay principles set forth in Title VII of the Civil Rights Act, the Equal Pay Act of 1963, the IL Human Rights Act, the Equal Wage Act, and the IL Equal Pay Act of 2003. Specifically, the statement must be signed by an officer or agent of the business and confirm the following representations: 

  • The average compensation for the business’s female and minority employees is not consistently below the average compensation for its male and non-minority employees within major job categories when accounting for various distinguishing factors;
  • The business does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
  • The wage and benefit disparities are corrected when identified to ensure compliance with applicable anti-discrimination laws; and

In addition, employers who are required to file a federal EEO-1 report must also include a copy of their most recent EEO-1 report.

June 2021 Amendments

Deadline:  Employers subject to the certification requirement as of March 23, 2021, must apply to obtain an equal pay registration certificate between March 24, 2022, and March 23, 2024. Covered employers that obtain authorization to do business in Illinois after March 23, 2021, must apply for certification within 3 years of commencing operations, but not sooner than January 1, 2024. Recertification must occur every 2 years. 

Certification Application Requirements: Covered employers must also submit a “wage records” list of all employees in the past calendar year, categorized by the county in which the employee works, gender and race/ethnicity with corresponding wages paid to each employee over that period, the employee’s start date with the business, and “any other information the Department [of Labor] deems necessary to determine if pay equity exists.” Employers with fewer than 100 employees must certify that they are exempt from requirements.

Compensation Approach: The original legislative text required employers to provide the IDOL with the “system” used to set compensation and required employers to select from certain options (e.g., market-based, performance pay, internal analysis, etc.).  Under the new amendments, the employer is required to describe the “approach” used to determine wages, but the employer is not required to select from any specific system. Instead, the statute states that “acceptable approaches include, but are not limited to, a wage and salary survey.”

Penalties: The March amendments provided that employers who fail to comply with the certification requirements or provide false information to the IDOL would result in a non-discretionary fine of 1% of their annual gross profits. Now, the Act authorizes a penalty of $10,000 for violation of the equal pay certificate requirements.

Grace Period: There is now a 30-day grace period for an employer to correct an inadvertent failure to timely file an application or cure deficiencies in the application for certification.

Third Party Access:  A current employee of a covered employer may request “anonymized” data regarding his/her specific job classification, including pay rate/salary. “Individually identifiable information” will not be subject to FOIA requests.  The June amendments set forth penalties for IDOL employees who are found to have leaked confidential application information – but the IDOL is authorized to share aggregate data and “individually identifiable information” with the IL Department of Human Rights or Office of the IL Attorney General.

Side note: On June 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it is extending the July 19, 2021, deadline to submit and certify 2019 and 2020 EEO-1 Component 1 reports to Monday, August 23, 2021.

Our recommendations to employers remain the same as set forth in our March 23 blog article: 

  • Review and, if necessary, modify equal pay policies that demonstrate a commitment to IEPA compliance.
  • Audit equal pay compliance annually. This includes creating strong/reliable compensation systems that are in line with the law (base wage, benefits, commission programs and bonus opportunities).
  • Update job descriptions annually. Focus not only on job titles, but the actual duties, responsibilities, and qualifications of the position.
  • Evaluate performance reviews. These continue to be the “kiss of death” for many employers since very few evaluators are willing to be honest and direct.
  • Consider partnering with credible 3rd parties to help design and implement compensation systems in order to comply with all applicable anti-discrimination laws.

EEOC Issues Updated Guidance Addressing COVID-19 Vaccine Incentives Among Other Issues

Contributed By Steven Jados, May 28, 2021

Medicine doctor and vaccine dose

On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance regarding employers offering incentives for employees to be vaccinated against COVID-19. The updated guidance also clarifies issues related to whether employers can mandate that employees be vaccinated before entering the workplace.

Interestingly, the EEOC’s guidance on vaccine incentives is broken into two parts: (1) incentives for employees voluntarily providing proof that they received a vaccination on their own, and (2) incentives for employees who voluntarily receive a vaccination administered by the employer or its agent.

As to the first scenario, the EEOC’s guidance says little more than that requesting proof of vaccination is not a disability-related inquiry covered by the Americans with Disabilities Act (ADA), and also does not seek information protected by the Genetic Information Nondiscrimination Act (GINA), and therefore employers may offer incentives to employees who provide proof that they were vaccinated. 

The guidance for the second scenario is a bit more detailed. It states that incentives may be offered, so long as the incentive (whether it is a reward or penalty) “is not so substantial as to be coercive.” The difference between the first and second scenarios is that in the second scenario, employees will likely be required to disclose protected medical information as part of the vaccine provider’s pre-vaccination inquiry. An incentive that is too large could make employees feel pressured to disclose that protected medical information, and that undue pressure may violate the ADA.

The EEOC’s guidance is that the incentive limitation in the second scenario does not apply to the first scenario—because the first scenario is just asking for proof of vaccination status, which is not a disability-related inquiry in the EEOC’s eyes. However, we recommend caution in providing large incentives in first scenario circumstances, too, given the recency of this EEOC guidance, and the thorny issues and litigation risks that can arise with respect to incentive programs that touch on employee health and medical information.

On the subject of mandatory vaccines, the EEOC’s updated guidance makes clear that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” subject to reasonable accommodation and other EEO considerations. The guidance includes expanded advice for responding to employees who do not want to be vaccinated due to medical or religious reasons or because of pregnancy. (A word of caution: federal EEO laws are not the only game in town, and there is a possibility that other laws could prohibit employers from imposing mandatory vaccine policies—so be careful.)

The EEOC’s next piece of guidance should not come as a surprise to our loyal readers: employees’ COVID-19 vaccination documentation is confidential and must be kept separate from employee personnel files, like other medical information.

The EEOC’s updated guidance also includes several links to resources available for employers to educate their employees about COVID-19 vaccinations and related issues.

As discussed above, issues relating to vaccine incentives—and really any issue relating to COVID-19 vaccines in the workplace—can get thorny very quickly. With that in mind, we recommend engaging experienced employment counsel before wading too deep into these issues.

EEO-1 Report Portal Opening Soon – Deadline is Set

hand with pen over form

Contributed by Beverly Alfon, April 16, 2021

The Equal Employment Opportunity Commission’s (EEOC’s) EEO-1 Component 1 Online Filing System is set to open on Monday, April 26, 2021. Private employers with at least 100 employees, and federal contractors with at least 50 employees and a contract worth $50,000 or more, must file their EEO-1 data for years 2019 (previously postponed due to the COVID-19 pandemic) and 2020, by Monday, July 19, 2021. Employers will be required to first file for 2019, then file for 2020 – after the 2019 report is submitted and certified.

As a reminder, EEO-1 reports require data from a “workforce snapshot period,” which is any single pay period during the last quarter of the year (October through December), as selected by the employer.  Employers may select different workforce snapshot pay periods for 2019 and 2020. 

Employees who telework must also be included in the EEO-1 report for the establishment to which they report. Practical tip: Do not include home addresses for these remote employees as a company location.

The 2019 and 2020 reports will only include “Component 1” data, which is comprised of the same workforce demographic information that has long been required on the EEO-1. As of right now, the controversial “Component 2” pay data information does not need to be reported to the EEOC. Last year, the EEOC did not renew its authority to collect the pay data information and is still evaluating the Component 2 data that it received for FY 2017 and 2018 to determine whether or not the information is useful, and whether or not the data collection form needs to be revised. 

It should also be noted that the U.S. Congress also could act on legislation pending in the form of the Paycheck Fairness Act, which would require the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) to initiate pay data collection.

In the meantime, some states have implemented their own pay data collections. California has completed its first round of collection under the state’s pay data collection law, and Illinois has enacted a law that requires employers in the state to submit pay data starting in 2023 (and obtain an equal pay registration certificate by March 24, 2024). Notably, Illinois employers who are required to file a federal EEO-1 report, will also be required to file similar information with the Secretary of State, making the data publicly available.    

Bottom line: Employers should be prepared to begin submissions of their EEO-1 reports for 2019 and 2020 as soon as possible. Don’t stop there. Evaluate your EEO-1 data and strongly consider pay equity analysis, with the goal of identifying and correcting any potential issues, sooner rather than later.

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.