EEOC Publishes Strategic Enforcement Plan for Fiscal Years 2017-2021

By Martha J. Zackin

EEOC recently published its Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021, in which it outlines the areas in which it intends to focus its strategic litigation and enforcement activities in the coming years.  Not surprisingly, the EEOC indicates that it intends to expend significant resources on understanding and protecting temporary employees and members of the gig workforce.

As described in the SEP, EEOC’s substantive priorities for Fiscal Years 2017-2021 are: Read more

EEOC Publishes Proposed Enforcement Guidance on Retaliation

By Emma L. Melton

The U.S. Equal Employment Opportunity Commission (EEOC) has released proposed Enforcement Guidance on Retaliation and Related Issues.  This proposed guidance provides insight as to how the EEOC interprets applicable law and hints at the areas that may receive increased focus going forward.

Existing federal employment laws prohibit employers from retaliating against applicants or employees for exercising rights protected by fair employment practice laws. This protected activity includes an employee’s opposition to a practice believed to be unlawful, such as complaining about discrimination or refusing an order believed to be discriminatory. It also includes participation in an employment discrimination proceeding, such as submitting a complaint, filing a charge of discrimination, or participating in an investigation of discrimination.

Retaliation claims may be brought under every law that the EEOC enforces, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, and others. The percentage of retaliation charges has increased significantly in recent years, constituting about 42% of charges filed with the EEOC in 2014, making it the most frequently alleged violation by complainants. Importantly, retaliation may be found even when the underlying claim of discrimination is ruled to be without merit. For example, if an employee files a complaint erroneously alleging sexual harassment in the workplace, but is fired because she filed the complaint, she could be successful in a claim of retaliation, despite the fact that no harassment occurred.

The proposed guidance does little to change current law.  It does, however, update prior guidance published in 1998.  After defining retaliation and outlining the three elements of a retaliation claim, the guidance provides an updated overview of relevant case law. The guidance also expands on the examples of retaliation given in the 1998 publication, and provides examples of both lawful employer action and unlawful retaliation. In addition to updating these sections, the proposed guidance includes a new section with five “best practices” for employers to implement to minimize the likelihood of retaliation violations.  These best practices are:

  • Designing and implementing written employer policies that include clear examples of both legal and illegal behavior and a reporting mechanism for potential or perceived retaliation;
  • Providing training on anti-retaliation policies for all employees;
  • Providing support for managers and supervisors to improve responses to complaints of retaliation;
  • Implementing a follow-up procedure to check in with employees after a complaint has been filed; and
  • Designating an individual to review proposed adverse employment decisions before action is taken.

The EEOC is requesting public input during the 30-day comment period ending February 24.  The proposed guidance may be viewed here.

EEOC Proposes Changes to EEO-1 Reporting to Include Pay Data

By Martha J. Zackin

Today, the U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed revision to the Employer Information Report (EEO-1) to include the annual collection and reporting of pay data.  Currently, federal law requires federal contractors with 50 or more employees, and all other employers with 100 or more employees, to file an annual EEO-1 report, which reports employees’ ethnicity, race, and sex by job category.  The revised EEO-1 would require all employers with 100 or more employees to continue to collect and report this demographic data and, in addition, pay data.  Federal contractors with between 50 and 99 employees would not be required to report pay data, but would continue to report ethnicity, race, and sex.

According to the press release published announcing this new requirement, the data collected will be used by both the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) “to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.”  In addition, as described in an EEOC- published “Questions and Answer” document, the data will be aggregated and published, to “help employers evaluate their own pay practices to prevent pay discrimination in their workplaces.”

A “Small Business Fact Sheet” provides a detailed description of the data that would be collected if the proposal becomes law.  In summary, using W-2 wage data employers would tally and report the number of employees within each EEO-1 job category whose W-2 pay for twelve months was in one of twelve “pay bands.”  These pay bands, which would track the twelve pay bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey, are:

    1. $19,239 and under;
    2. $19,240 – $24,439;
    3. $24,440 – $30,679;
    4. $30,680 – $38,999;
    5. $39,000 – $49,919;
    6. $49,920 – $62,919;
    7. $62,920 – $80,079;
    8. $80,080 – $101,919;
    9. $101,920 – $128,959;
    10. $128,960 – $163,799;
    11. $163,800 – $207,999; and
    12. $208,000 and over.

In addition to reporting (by ethnicity, race and sex) the number of employees whose total W-2 pay fell into each pay band, employers would also tally and report the total number of hours worked by the employees counted in each pay band over the prior twelve months. This would accounts for part-time or partial-year employment.

Members of the public may submit comments through April 1, 2016.  Barring revision or withdrawal of the proposal, employers will be required to comply with the new EEO-1 obligations by submit ting pay data as of the September 30, 2017 EEO-1 filing deadline.

The EEOC also The proposed revised EEO-1 may be viewed here.

Supreme Court Backs EEOC in Religious Accommodation Case

By Martha J. Zackin

In a much anticipated decision, the United States Supreme Court today held that Abercrombie & Fitch violated the prohibition against religious discrimination, as set forth in Title VII of the Civil Rights Act of 1964, by refusing to hire a Muslim applicant who wore a headscarf (a hijab) during a job interview.  In so holding, the Court rejected Abercrombie & Fitch’s argument that an employer cannot be liable for discrimination unless it can be shown that the employer had actual knowledge of the applicant’s need for a religious accommodation.  Instead, the Court stated, an employer violates Title VII if its actions are motivated by a desire to avoid accommodating a religious practice even if the employer is not certain that an accommodation will be needed.  Importantly, the Court left for another day the question whether an employer may be liable under Title VII if it has neither knowledge nor suspicion that an applicant or employee may require a religious accommodation.

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SEC Sues Over Employee Confidentiality Agreements

By Martha J. Zackin

Early in March, the Wall Street Journal reported that the Securities and Exchange Commission had begun to probe “whether companies are muzzling corporate whistleblowers” through the use of confidentiality agreements that may impede employees from disclosing corporate wrongdoing.  As reported, the SEC sent letters to a number of companies asking them to turn over “every nondisclosure agreement, confidentiality agreement, severance agreement and settlement agreement they entered into with employees since Dodd-Frank went into effect, as well as documents related to corporate training on confidentiality…”  The agency “also asked for ‘all documents that refer or relate to whistleblowing’ and a list of terminated employees.”

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Supreme Court Rules on Pregnancy Accommodations

By Martha J. Zackin

Early this week, the United States Supreme Court issued its much-anticipated decision in Young v. United Parcel Service, Inc., finding that UPS may have engaged in pregnancy discrimination by refusing to accommodate an employee’s pregnancy-related lifting restrictions by transferring her to a light duty position.  In so holding, the Supreme Court applied the same legal standard to pregnancy discrimination cases as applies to cases based other categories protected under Title VII (race, sex, religion, ethnicity, and the like).  Specifically, the Court applied the burden-shifting analysis articulated in McDonnell Douglas v. Green and its progeny, pursuant to which the plaintiff first must establish that the facts alleged are adequate to support her claim.  Thereafter, the employer is given the opportunity to articulate a legitimate, nondiscriminatory reason for its action, which reason the plaintiff must show is merely a pretext for discrimination before she may proceed to trial. Read more

EEOC Issues New Guidance on Treatment of Pregnant Employees

By Leigh C. Tinmouth

The Equal Employment Opportunity Commission (“EEOC”) recently issued an  enforcement guidance relating to the treatment of pregnant employees (the “Guidance”).  The Guidance reaffirms the EEOC’s position that, although pregnancy itself is not a disability under the Americans with Disabilities Act (“ADA”), many temporary pregnancy-related impairments may qualify as disabilities.  Temporary impairments that may qualify as disabilities include, for example, carpel tunnel syndrome, gestational diabetes, preeclampsia, and even nausea resulting in severe dehydration.  Per the EEOC, therefore, employers may be required to offer reasonable accommodations to employees with such pregnancy-related impairments.

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Inflexible Leave Policies – EEOC Position is Clear Despite Court’s Disagreement

On June 30, 2014, the Equal Employment Opportunity Commission touted its recent agreement with Princeton HealthCare System to settle litigation challenging PCHS’s “inflexible” leave of absence policy under the Americans with Disabilities Act.

According to the press release published by the EEOC, PHCS maintained a fixed leave policy whereby employees were terminated if they were unable to return to work at the end of FMLA-covered leaves of absence, or after a shorter period if ineligible for Family and Medical Leave Act-related leave.  This blanket policy, the EEOC asserts, violates the ADA because it fails to consider leave as a reasonable accommodation.  To settle the case, PCHS will pay $1,350,000 and eliminate its inflexible leave policy.  The EEOC press release also celebrates of “significant resolutions of EEOC cases involving leave and attendance policies, including its settlements with Interstate Distributor, Supervalu, Sears and Verizon. Read more

EEOC Publishes New Guidance on Religious Garb and Grooming in the Workplace

By Leigh C. Tinmouth

The EEOC recently published a question-and-answer guidance (“Guidance”) regarding religious garb and grooming in the workplace. The EEOC, through the Guidance, states that, in most instances, employers covered by Title VII must make exceptions to their usual rules or preferences to permit applicants and employees to follow their religious dress and grooming practices.

The EEOC observes that Title VII protects all aspects of “sincerely held” religious observances and religious beliefs. Under the Guidance,” religion” is defined broadly to include not only traditional, organized religions, but also religious beliefs that are new, uncommon, or only subscribed to by a small number of people. The Guidance emphasizes that an applicant or employee’s religious beliefs may be “sincerely held” even when the religious practices at issue are illogical or unreasonable to others, and even when they deviate from commonly-followed tenets of the applicant or employee’s religion. Non-observance is also protected, and discrimination based on an individual’s lack of religious beliefs is prohibited.

The EEOC, through the Guidance, takes the position that Title VII requires an employer to make an exception to its policies and practices (including its dress and grooming policies and practices) if an applicant or employee requires a religious accommodation for a “sincerely held” religious belief unless doing so would pose an undue hardship. Customer preferences or maintaining a certain “image” do not constitute an undue hardship. Employers are also reminded that Title VII bars retaliation against an employee because the employee has engaged in protected activity (which includes requesting religious accommodation), and workplace harassment based on religion (which includes asking an employee to engage in a religious practice that is contrary to his or her beliefs).

The EEOC sets forth questions and answers pertaining to, among other issues, accommodating religious dress and grooming practices of employees who have only recently adopted religious observances, accommodating religious dress and grooming practices even when doing so will purportedly harm an employer’s “image,” and providing religious accommodations to employees with long hair or unshaven facial hair. Click here to review these questions and answers as well as other topics addressed in the Guidance.

EEOC Issues Report on Social Media in the Workplace

Did you know that social media is part of today’s workplace but its use may raise employment discrimination concerns?  According to an EEOC press release issued on March 12, experts tell EEOC that use of social media by employers, applicants and employees may implicate the laws EEOC enforces.  Not to be sarcastic, but the only thing newsworthy about this press release is the fact that it wasn’t issued years ago.