Tag Archives: 1964 Civil Rights Act

EEOC Systemic Discrimination Initiatives: View From the Battlefields

Contributed by Jill Cheskes

Since at least 2005, the EEOC has publicly committed itself to focusing on and rooting out systemic discrimination across the U.S.  On February 2, 2012, the EEOC approved its strategic plan for the fiscal years 2012-2016 indicating that it will dedicate a significant amount of resources to remedying systemic discrimination.  Although this already had been a focus of the EEOC, in light of the fact that charges of discrimination with the EEOC are at an all-time high and the EEOC’s budget was cut, the agency has had to “think strategically about how best to target its efforts to ensure the strongest and broadest impact possible in its efforts to stop unlawful employment discrimination.”  The EEOC has decided that the best way to do this is to focus on “big cases.” 

Unfortunately for employers, what this means is that every charge filed with the EEOC now has the potential and ability to result in scrutiny of company-wide practices.  The EEOC’s initiatives are patently apparent when objectively looking at how the EEOC investigators are conducting investigations into a standard single complainant charge.

The EEOC is frequently sending out broad requests for information for a class of employees for employment practices that might not even be implicated in the individual charge.  For example, a charge of race discrimination alleging discrimination in discipline and termination has been effectively held to allow the EEOC to investigate hiring practices.

With more and broader requests for information being submitted, employers are pushing back on these requests on a more frequent basis.  In turn, this is resulting in the EEOC issuing subpoenas, something which is well within their authority to do.  This has, in turn, resulted in civil actions to enforce the subpoenas when employers continue to balk at these requests. 

An additional practical effect of the EEOC’s strategic plan is more “cause” findings being entered on a class-wide basis even if the underlying charge is on behalf of an individual.  The cause findings result in conciliation efforts between the EEOC and the employer, which have largely become an exercise in futility for employers who are finding it difficult to get information on the alleged class members in order to effectively conciliate cases.  Frustrations aside, employers need to conscientiously attempt to conciliate and document every step of the process in order to have any ability to fight a large and, perhaps, unexpected, class after litigation is filed.

Additionally, employers are seeing more and more Commissioner Charges being filed, which can be extremely broad thereby allowing for even broader investigation attempts.  Finally, the effect of this strategic plan has resulted in more class action or systemic-based lawsuits.

Dealing with the EEOC can be a landmine and litigation is erupting all over on all of these issues.  While the case law is still developing, employers should understand all these nuances when defending cases before the EEOC.

EEOC Decides Title VII Prohibits Gender Identity Discrimination

Contributed by Jon Hoag

The United States Equal Employment Opportunity Commission (EEOC) has ruled that discrimination against transgender individuals is sex discrimination under Title VII. This is the first time for the EEOC to hold that Title VII covers discrimination based on gender identity and the decision could have a sweeping impact. EEOC decisions are not controlling on the courts, but the federal courts often give deference to EEOC interpretations and decisions.

The case only involved the procedural issue of whether Title VII extended to the complainant’s allegations of gender identity. The EEOC decided in the affirmative and remanded the matter to the federal agency to determine if the employer discriminated based on the complainant’s gender identity. According to the complainant, she was denied a position with the ATF because she disclosed that she was in the process of transitioning from a male to a female. The complainant states that shortly after this disclosure, she was told that the position could not be filled because of budget cuts. The complainant was concerned about the timing and inquired further about the position only to find that the position had not been eliminated and was actually filled by another candidate. 

The complainant filed a charge of discrimination based on sex and gender identity. In reaching its decision that gender identity is covered by Title VII, the EEOC relied on federal decisions that have addressed Title VII in the context of gender stereotypes and identity. While some federal courts have found Title VII applies to gender identity discrimination, it is anticipated that the EEOC decision will prompt direct and consistent application of Title VII to gender identity discrimination claims. Employers…you know what to do…stay tuned and stand ready to adjust your policies and procedures accordingly.

EEOC Issues New Guidance on the Use of Arrest and Conviction Records in Employment Decisions

Contributed by Jill Cheskes

On April 24, 2012, by a 4-1 vote, the EEOC issued guidance that stated that Title VII does not prohibit the use of criminal background checks but that employers could violate Title VII if they intentionally discriminate against individuals with a criminal history or if their policies have a disparate impact based on race or national origin absent business necessity.  The EEOC stated that “individualized assessments” should occur when an employer receives negative information from a background check so as not to discriminate.  Nothing in Title VII requires any individualized assessment but the EEOC guidance now does.

Additionally, the EEOC stated that following state and local law may not be a defense.  The EEOC also recommended that employers “ban the box” on the application form that asks employees if they have been convicted of a felony.  The guidance does not, in any way, prohibit background checks, however, this suggestion of “banning the box” has been met with opposition. 

Practically speaking, there is little reason for an employer to do such a thing and certainly Title VII does not require it.  Quite honestly, an employer faces a host of other liability issues if they fail to perform a background check that would have revealed negative information.  At the end of the day, the guidance probably does not do more than most employers are likely already undertaking with these issues but the EEOC is now saying some of these things are required under Title VII. 

Employers are still able to use this information to deny employment but they must assess whether the hiring policies intentionally discriminate or have a disparate impact on minority candidates.