Category Archives: EEOC

EEOC To Reconsider Pay Data Collection

Contributed by Jonathon Hoag, February 14, 2017

income-savingsOn September 29, 2016, the Equal Employment Opportunity Commission (EEOC) announced it finalized regulations that require employers to include employee pay data in annual EEO-1 reports. The pay data is required for 2017 reports, which are due March 31, 2018. That is, employers with 100 or more employees are now required to include aggregate W-2 income by gender, race, ethnicity, and job group on their EEO-1 reports.  The rule was harshly criticized by employers, who place hope in the Trump administration to undo the regulations.

On January 25, 2017, President Trump designated Victoria Lipnic as the EEOC’s acting chair. Commissioner Lipnic voted against the pay data collection rule and recently indicated this is the type of government action President Trump wants to halt. Changes to the rule would require a vote from the Commission. Prior to the March 31, 2018 deadline for first collection of pay data, President Trump will have the opportunity to nominate two EEOC Commissioners. The nominations require Senate confirmation, so it is uncertain when new EEOC Commissioners will be in place. However, once the EEOC has a Republican majority, it is widely anticipated that the pay data rule will be rolled back, if not eliminated.

Aside from the pay data regulations, employers should note that Commissioner Lipnic announced that the EEOC’s core strategic enforcement plan is not expected to change significantly under the Trump administration. The EEOC’s systemic program will remain a priority as will its focus on workplace harassment charges. The EEOC may reign in broad attacks on the employer community, but it will likely remain an active agency under the Trump administration.

Stay tuned for updates on any changes to the pay data rule and how the EEOC is operating and enforcing rules under the new administration.

EEOC’s Tweet Reminds Employers of its Stated Interest in Protecting Gig Economy Workers

Contributed by Allison Sues, January 10, 2017

15198483 - employment contract document form with penOn January 6, 2017, the United States Equal Employment Opportunity Commission’s (EEOC) twitter account confirmed the federal agency’s interest in “gig economy” workers. “Gig economy” workers refer to individuals working in modern, flexible employment structures that contract with an employer for a short-term project or on a job-by-job basis, rather than working in traditional, long-term relationships with a single employer. For example, gig economy workers generally reference temporary workers, freelancers, independent contractors, and staffing agency workers.

The EEOC’s January 6, 2017 tweet referenced a recent legal decision from across the pond regarding gig economy workers. In that case, a British woman working as a bicycle courier for a large courier firm claimed she should be classified as an employee of the firm rather than as self-employed, a distinction that under British law would entitle her to employee work benefits, including holiday pay, sick pay and payment at or above the minimum wage. After considering the degree of control the firm exercised over its bicycle couriers, the British tribunal ruled in the bicycle courier’s favor, finding her to be an employee.

The EEOC’s tweet echoes the EEOC’s Strategic Enforcement Plan (SEP), which was released in October 2016 and was previously covered on this blog on January 3, 2017. The EEOC’s SEP specifically identified the following as a priority for the agency: “[c]larifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships and the on-demand economy.” The EEOC has repeatedly made it clear that it intends to scrutinize and target the gig economy workforce to ensure those workers are not improperly overlooked when it comes to fair employment practices, including compliance with federal anti-discrimination, harassment, retaliation and wage laws.

Employers utilizing any sort of short-term or “gig economy” workers should be aware of the EEOC’s priority and not automatically assume the protections afforded under Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act do not extend to on-demand or short-term workers. Employers must also ensure they are properly classifying workers under the Fair Labor Standards Act in light of the recent surge of lawsuits in the United States alleging that gig economy workers have been improperly classified as independent contractors rather than employees. Employers should consider a variety of factors put forth by the U.S. Department of Labor and courts in determining appropriate classifications, including, but not limited to, whether the worker operates or works for an independent business, the worker’s degree of control and independence over his or her work, the permanency of the work relationship, the worker’s investment in work resources, the dependency of the worker’s business on the relationship and the extent to which the work performed is an integral part of the employer’s business. Finally, remember that classifying a worker as an independent contractor based on “industry standard,” is not a defense to a misclassification claim.

EEOC Quietly Updates Strategic Enforcement Plan for 2017-2021

Contributed by Noah A. Frank, January 3, 2017

The EEOC’s new Strategic Enforcement Plan (SEP) highlights its enforcement priorities and alerts employers to areas most likely to attract the EEOC’s investigative eye, including the types of charges the EEOC is most likely to litigate on a complainant’s behalf.

The EEOC recognizes that employment law is continuously developing and that related practices are continuously evolving.  As a result, this SEP is intended to reflect current issues. This new four year SEP (which remains in effect until superseded, modified or withdrawn by vote of a majority of members of the Commission) emphasizes:

  1. 41191023_sEliminating Barriers in Recruitment and Hiring.  As with the prior SEP, this priority includes exclusionary policies and practices such as “channeling or steering” persons into particular positions due to a protected trait, restrictive application processes, and screening tools for employment.
  1. Protecting Vulnerable Workers – Including Immigrant or Migrant Workers, and Underserved Communities from Discrimination. The focus is on discriminatory policies including job segregation, unequal pay, and harassment. The shift here is to underserved communities.
  1. Addressing Emerging and Developing Issues. Despite many courts’ attempts to rein in the EEOC, the agency recognizes the following developing issues worthy of particular scrutiny: age and religious discrimination; coverage of LGBT persons under Title VII; disability discrimination, including qualification standards, inflexible leave policies, and temporary workers; accommodating pregnancy-related limitations; issues related to workers engaged on-demand (gig economy), including through staffing agencies, and  independent contractor relationships; and “backlash discrimination” against Muslim/Sikh/Arab/Middle Eastern/South Asian communities.
  1. Enforcing Equal Pay Laws.  Previously focused on gender-based discrimination, the EEOC expanded this priority to all protected classes.  In light of this, employers may see claims of willful protected class discrimination added to wage and hour disputes.
  1. Preserving the Exercise of Rights under the Law. The EEOC is targeting policies and practices that discourage or prohibit individuals from exercising their rights or disrupt investigative or enforcement efforts. This includes vague and overbroad waivers and provisions in settlement agreements that prohibit filing EEOC charges or assisting in the investigation or prosecution of claims. Unlike the prior SEP, this SEP removes “retaliatory actions” due to the EEOC’s inconsistent application, shifting the focus to “Significant Retaliatory Practices” that effectively dissuade others from exercising rights (e.g., terminating the HR Manager for investigating a complaint to send a message to other employees to not complain in the first place).
  1. Preventing Systemic Harassment. The EEOC’s focus includes prevention programs (training and outreach) to deter future violations.

Starting 2017 on the Right Foot

Because state and local administrative agencies (e.g., city and county civil rights departments) often follow the EEOC’s lead, all employers, regardless of size, should take note of the EEOC’s stated priorities. An audit of human resources practices and policies should be part of your 2017 New Year’s (legal) resolutions.

EEOC Offers Guidance on Protected Activity Preceding Retaliation Claims

Contributed by Allison Sues, September 16, 2016

Last month, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues.  Having last issued guidance on retaliation claims in 1998, the agency stated that an updated publication was necessary in light of the significant court rulings on these claims, as well as the increasing frequency of retaliation claims in administrative charges and lawsuits. Retaliation is now the most commonly alleged basis of discrimination.

Of particular interest, the EEOC discusses at length its position on various issues that arise in determining whether an employee has engaged in protected activity:

41191023_s“Participation” Protected Activity: “Participation” protected activity includes making a charge, testifying, assisting, or participating in any investigation or proceeding under anti-discrimination law. As compared with “opposition” protected activity, “participation” protected activity does not require a good faith, reasonable belief that the underlying alleged discrimination or harassment constitutes unlawful conduct.

“Opposition” Protected Activity: “Opposition” protected activity includes any report, complaint, or other communication that an employee makes opposing what he or she reasonably and in good faith perceives to be discrimination or harassment. The EEOC takes a broad view of this type of protected activity, stating that it may encompass complaints that employees make to people outside of human resources and management, including reports made to coworkers, union officials, or even people outside of the company, such as an attorney. The EEOC also notes that employees may engage in protected activity by raising complaints publicly or informing management of the intent to make a complaint (rather than actually making one).

Reasonableness of the Complaint:  Despite the EEOC’s expansive view of protected activity, it does recognize some limitations.  For example, the EEOC clarifies that the manner in which the employee opposes the alleged unlawful conduct must be reasonable.  Determining whether the employee acted reasonably is a “context- and fact-specific inquiry.”  However, the EEOC provides some clarification, noting that complaints including threats of violence and complaints made in an overly disruptive and excessive manner are not reasonable and, therefore, not protected activity. Further, the EEOC notes that engaging in protected activity does not immunize employees from discipline if the protected activity causes them to neglect their job duties.

Protected Activity Regarding Harassment:  The EEOC also offers guidance on protected activity relating specifically to complaints of harassment. An employee can complain of harassment in good faith even if the complained-of conduct is not yet severe or pervasive.  While one isolated inappropriate comment in the workplace may not rise to an actionable harassment claim, the EEOC takes the position that complaining about that one comment can create the basis for an actionable retaliation claim. Also, an employee engages in protected activity by resisting sexual advances of a superior, even if he or she does not separately report the advance.

Compensation:  An employee’s inquiry about others’ compensation rates, even when made to coworkers, may constitute protected activity if the context of the inquiry shows that the employee was trying to gather information in support of a potential discrimination claim.  Therefore, employers with a policy that prohibits employees from discussing their pay should reevaluate in light of the EEOC’s position on compensation inquiries, especially if the company issues discipline for violations of any type of pay secrecy policy.

For further information on the EEOC’s Guidance on Retaliation Claims, click here.

Blanket Exclusion Policies Continue to Draw EEOC’s Ire

Contributed by Suzanne Newcomb, August 30, 2016

Last week the EEOC filed suit against an Arizona car dealership for rescinding its offer to an applicant who tested positive for a substance banned by the company’s drug policy. The drug screen itself was legal. The ADA specifically allows employers to screen applicants and employees for illegal drug use. It was the employer’s policy of excluding anyone who tested positive for certain substances without first inquiring whether the substance was legally prescribed to treat a disability that prompted the EEOC to file suit. Notably, the EEOC filed suit on behalf of this particular applicant as well as all others who are similarly situated.

Discrimination-2In a press release the EEOC’s Pheonix Regional Attorney explained that drug tests, though legal, “cannot be used to discriminate against qualified people with disabilities.” She cautioned employers to “be mindful that they may need to make exceptions to drug use policies as a reasonable accommodation.”

The EEOC has taken a similar stance against strict application of maximum leave policies. As is noted in the EEOC’s guidance on leave as a reasonable accommodation published earlier this year, reasonable accommodation “can include making modifications to existing leave policies and providing leave when needed for a disability, even where an employer does not offer leave to other employees.” In some situations this can mean extending leave beyond that which is protected by the Family and Medical Leave Act. The EEOC’s May 2016 guidance on leave as a reasonable accommodation can be found here.

The Arizona case involves prescription medication, not illegal drugs. The plain language of the ADA allows employers to act on the basis of current use of illegal drugs. Employers may also inquire about an individual’s ability to safely perform the essential functions of the position. However as prescription drug abuse continues to plague the American workforce, the line between prescription medication and illegal drugs becomes less and less clear.

Bottom line, the ADA requires employers to engage in an interactive process to determine whether reasonable accommodation will allow the individual to perform the job safely. This mandate extends to all phases and facets of the employment relationship. Blanket rules that do not provide for an individualized assessment of whether reasonable accommodation is possible are rarely defensible.

EEOC Enters Historic First Settlement in Sexual Orientation Case

Contributed by Carlos Arévalo, July 20, 2016

settlementBack on our March 8, 2016 blog, we reported about two new lawsuits filed by the EEOC based on sexual orientation. On June 28, 2016, the EEOC reached a historic first settlement on one of these lawsuits. In the case against Pallet Companies, doing business as IFCO Systems North America, the EEOC alleged that the company discriminated against a woman by terminating her for complaining about harassment associated with her sexual orientation. Yolanda Boone, a forklift driver at IFCO’s Baltimore plant, complained that her supervisor harassed her by repeatedly making comments about her sexual orientation. This included comments such as “I want to turn you back into a woman,” “I want you to like men again” and “you would look good in a dress.” Despite Boone’s complaints to management, the harassment continued. Following additional complaints to the general manager and HR, Boone was purportedly terminated.

While the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion, it does not explicitly include sexual orientation as a basis.  Nevertheless, the EEOC maintains that harassment based on sexual orientation is covered under the prohibition against discrimination based on sex. To date, no federal appeals court has issued a ruling adopting the EEOC’s approach to sexual discrimination claims involving sexual orientation.  However, cases are pending in the 2nd, 7th and 11th Circuits.

The settlement award includes $7,200 in back pay, $175,000 in damages to Boone, and $20,000 to the Human Rights Campaign, an LGBTQ advocacy group. As part of the settlement, IFCO will also retain an expert to develop workplace training addressing sexual orientation, gender identity and transgender issues in the workplace.

In light of the terms of the settlement, and as we suggested in our earlier blog, employers nation-wide should review and revise their EEO policies to ensure conformance with the EEOC’s enforcement strategy, even if their state does not already protect sexual orientation. Employers should also ensure that management and supervisory employees are trained to identify potential instances of discrimination and harassment based on sexual orientation, and how to address employee complaints relating to sexual orientation as the failure to do so could have severe legal and financial consequences.

EEOC Task Force Identified Risk Factors for Harassment in the Workplace

Contributed by Allison Sues, July 18, 2016

Last month, an EEOC Task Force issued a lengthy report on harassment in the workplace.  The report begins with mention of the prevalence of harassment claims, which appear in almost a full third of the employment discrimination charges that the EEOC received in 2015. Given this, the report recommends that employers reboot their anti-harassment measures. Among other helpful research and advice, the report discusses risk factors that make a workplace more susceptible to harassment, many of which are discussed below:

  • Workforce comprised of many young workers. Those in their first job may not yetjob training, classroom understand appropriate workplace behavior. Reduce this risk by providing orientation to all new employees covering anti-harassment rules and complaint procedures.
  • Workplace where the job requires completion of monotonous or low-intensity tasks. Employees who are not actively engaged may turn to harassing behavior to pass the time. Reduce this risk by considering restructuring job duties to reduce monotony.
  • Isolated workspace. An employee working in an isolated area, such as a housekeeper in an individual hotel room, may become a target for harassment given the lack of witnesses. Reduce this risk by ensuring that employees in isolated areas understand complaint procedures and by creating opportunities for employees to connect with each other to share concerns.
  • Workplace with a culture of alcohol consumption. Workplaces that tolerate or encourage drinking, such as in sales, allow employees to interact with lowered inhibition and impaired judgment. Reduce this risk by training coworkers to intervene if they observe alcohol-related misconduct and by effectuating a process for handling customers who are inebriated and inappropriate.
  • Workforce where some workers do not conform to workplace norms. An employee, such as a lone female working in a male-dominated group, may perceive remarks or humor that is part of the workplace norm as harassing. Reduce this risk by leadership communicating an expected workplace culture of civility, respect, and professionalism.
  • Decentralized workplace.  Local managers may feel unaccountable for their actions or be unsure of how to handle harassment complaints. Reduce this risk by ensuring that compliance training reaches all levels of the organization and by developing systems for employees in geographically diverse locations to connect and communicate.
  • Coarsened social discourse outside of the workplace. A community’s heated discussion of current events involving a particular protected group may impact treatment toward that protected group in the workplace. Reduce this risk by proactively identifying current events that are likely to be discussed in the workplace and reminding employees of the type of conduct that is unacceptable.

In addition to the risk reduction strategies discussed above, an employer may minimize its vulnerability to harassment simply by assessing its workplace for each risk factor and then paying closer attention to the relations of the implicated work groups. Proactive employers should use these risk factors as helpful starting points for conducting anti-harassment training and in monitoring their workplace for potential harassment.