Category Archives: EEOC

Another Coffin Nail for EEOC Merger?

After taking office in January, one of President Trump’s first orders of business was to act on a recommendation from the conservative Heritage Foundation, which recommended eliminating redundancies in the Labor Department’s Office of Federal Contract Compliance Programs and the Equal Employment Opportunity Commission.

Indeed, in the president’s budget, the OFCCP saw its budget reduced from $105 million to approximately $88 million while EEOC funding in Trump’s budget proposal essentially stayed the same at roughly $364 million, according to Federal News Radio.

Labor Secretary Alexander Acosta even testified at a House Appropriations subcommittee hearing in support of the Trump proposal, where he called the merger a “commonsense change” that “combines two civil rights agencies that already work together closely.”

But opposition to the plan has been widespread ever since it was announced, according to that report. It notes that 73 civil rights groups condemned the measure, and even the U.S. Chamber of Commerce has lined up against it:

Camille Olson, chair of the U.S. Chamber of Commerce’s equal employment opportunity policy subcommittee, told lawmakers recently that numerous companies have contacted the Chamber with concerns about merging the agencies. “Both the EEOC and the OFCCP need reforms,” she said, but not in the form of a merger.

Signs of resistance to the merger idea are also becoming more evident in Congress, where last week the U.S. House of Representatives approved an amendment that would prohibit funds from being used to merge the EEOC and the Labor Department’s contractor compliance office, according to a Bloomberg BNA report.

The proposal to merge the Equal Employment Opportunity Commission and the DOL’s Office of Federal Contract Compliance Programs is “a total mess,” said Rep. Donny Scott (D-Va.), the ranking member of the House Committee on Education and the Workforce who offered the amendment.

“Both have important missions, but combining them would be total confusion,” Scott told Bloomberg BNA. “The Chamber of Commerce opposed the merger, civil rights groups opposed the merger, and the Senate already had language in their bill taking away the merger, so I think it was appropriate in the House bill to also make a statement.”

The Bloomberg report notes that “the House amendment follows the Senate Appropriations Committee’s rejection last week of the proposed merger, which can’t occur without lawmaker support. A number of legislative and regulatory actions would be required to consolidate the agencies and to reconcile their different enforcement structures and approaches.”

 

EEOC: HR Leader Wrongly Fired

The American Dental Association illegally fired both its CHRO and chief legal counsel after they alerted the association board about employment discrimination occurring at the Chicago-based trade group, says the Equal Employment Opportunity Commission.

The agency on Friday announced a $1.95 million settlement with the association to resolve charges that the group illegally retaliated against the the chief legal counsel, Tamra Kempf, and the association’s  chief HR official, whom it did not name.

The two had raised concerns about violation of laws prohibiting discrimination on the basis of age and disability, the EEOC said, without providing details.

Beyond the discrimination, the retaliation was of great concern, said Julianne Bowman, director of the EEOC’s Chicago District office.

“The position of the EEOC is that human resource  professionals and in-house lawyers who advise their employers to abide by anti-discrimination laws are engaged in protected activities, and any retaliation against them for doing so is illegal,” Bowman said in the EEOC statement.

The dental association contended the two former employees’ complaints are “without merit,”but said it settled to avoid the costs and risks of a trial.

In addition to the fines, which will go to the former employees, the association agreed to take “proactive measures” to prevent future discrimination and retaliation. It also will provide training in discrimination law for employees in the association’s Chicago headquarters,the EEOC said.

EEOC Releases Stats on LGBT Bias

The U.S. Equal Employment Opportunity Commission received 91,503 charges of workplace discrimination in in fiscal year 2016 — the second year in a row that the number of charges has increased, the agency reports.  The EEOC says it resolved 97,443 charges of discrimination and secured more than $482 million for victims of discrimination through voluntary resolutions and litigation last year.

That’s according to the EEOC’s just-released annual summary of its enforcement and litigation data for the previous fiscal year, which this year — for the first time ever — includes detailed information about workplace discrimination charges filed by LGBT employees. The agency reports that it resolved 1,650  charges and recovered $4.4 million for LGBT individuals who filed sex discrimination charges with it during fiscal year 2016.  The number of such charges filed by members of the LGBT community has steadily risen since the EEOC began collecting this information in 2013, with 4,000 charges filed between then and 2016.

The agency has been a strong advocate of workplace rights for LGBT employees, arguing that the protections afforded workers under Title VII of the Civil Rights Act extend to sexual orientation. In 2015, it ruled in favor of David Baldwin, a former Federal Aviation Administration employee who charged the FAA with discriminating against him because he is gay. In that case, the EEOC concluded that workplace discrimination on the basis of sexual orientation  is indeed “sex-based” discrimination and therefore falls under the protection of Title VII.

It’s filed supporting briefs in a number of federal lawsuits by members of the LGBT community against their employers, including that of Kimberly Hively. Hively, a former adjunct professor at Ivy Tech Community College in Indiana, claims the college refused to allow her to interview for a full-time position or extend her contract because she is a lesbian. In late November the 7th U.S. Circuit Court of Appeals heard arguments in her case and is expected to issue a ruling later this year. According to reports, the 7th Circuit judges expressed sympathy toward the arguments put forth by Hively’s legal team. Should the court rule in her favor, it would be the first U.S. appellate court to expand Title VII’s protections to LGBT individuals.

Mental Health Conditions and the ADA

Mental healthIn many cases, making reasonable accommodations for employees’ physical conditions should seem straightforward enough.

Provide a hearing-impaired worker with the necessary phone equipment, for example. Allow a blind employee to bring his or her service dog to work. Lower the height of a wheelchair user’s desktop.

Addressing the needs of individuals with mental health conditions—which can be difficult to understand or even recognize—is a bit trickier for employers. Recent history gives us examples (like this one) of how organizations can run afoul of the American with Disabilities Act when dealing with mental health issues in the workplace.

This week, the U.S. Equal Employment Opportunity Commission issued a resource document it hopes will explain workplace protections and appropriate accommodations for employees and job applicants with mental health conditions under the ADA.

Judging by recent EEOC data, many employers could use some guidance in this area.

During fiscal year 2016, the organization resolved nearly 5,000 charges of discrimination based on mental health conditions, and obtained roughly $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations. And, EEOC charge data show that claims of discrimination based on mental health conditions are on the way up.

Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights is geared toward the individual employee, but can also be instructive for businesses. For instance, the document offers examples of possible accommodations to help individuals with mental health conditions perform their jobs, such as altering break and work schedules (scheduling work around therapy appointments, for example), providing quiet office space or devices that create a quiet work environment, making changes in supervisory methods and granting permission to work from home.

It also outlines scenarios in which employees or job applicants are allowed to keep a mental health condition private, and details situations that permit employers to ask medical questions, including queries surrounding mental health.

“Many people with common mental health conditions have important protections under the ADA,” said EEOC Chair Jenny R. Yang, in a statement. “Employers, job applicants and employees should know that mental health conditions are no different than physical health conditions under the law. In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues. This resource document aims to clarify the protections that the ADA affords employees.”

The EEOC Enforcement Agenda

Earlier this week, the Equal Employment Opportunity Commission issued its updated enforcement guidance on national origin discrimination.

(The EEOC also issued two resource documents to accompany the guidance: a Q & A publication on the guidance document and a small business fact sheet designed to illustrate the guidance’s chief points in plain language, according to the organization.)

The new guidance defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.”

The documents also address Title VII’s prohibition on national origin discrimination as applied to a broad range of employment situations and highlight practices for employers to prevent discrimination, as well as discussing legal developments since 2002, when the EEOC issued the national origin discrimination compliance manual section that these new guidelines are intended to replace.

“EEOC is dedicated to advancing opportunity for all workers and ensuring freedom from discrimination based on ethnicity or country of origin,” says EEOC Chair Jenny R. Yang, in a statement.

“This guidance addresses important legal developments over the past 14 years on issues ranging from human trafficking to workplace harassment. The examples and promising practices included in the guidance will promote compliance with federal anti-discrimination laws and help employers and employees better understand their legal rights and responsibilities.”

This announcement comes just weeks after the EEOC unveiled its Strategic Enforcement Plan for fiscal years 2017 through 2021. One pillar of this plan is the agency’s expanding focus on protecting immigrant and migrant workers, such as those who are Muslim or Sikh or persons of Arab, Middle Eastern or South Asian descent, as well as those perceived to be members of these groups, as HRE’s Julie Cook-Ramirez noted earlier this month.

Of course, the EEOC’s new guidelines and its stated strategy for the next five years arrive almost exactly two months before the scheduled inauguration of President-Elect Donald Trump, who stands to significantly shake up the agency’s agenda.

In a recent blog post at www.law360.com, law professor Michael LeRoy explains how the incoming president could very well upend the EEOC’s enforcement agenda with regard to national origin (and other forms of) discrimination.

“Trump’s popularity derives in no small measure from people who are tired of ‘political correctedness,’ ” writes LeRoy, a professor in the School of Labor and Employment Relations and College of Law at the University of Illinois at Urbana-Champaign. “This concept is generally found in Equal Employment Opportunity Commission regulations that prohibit employers from creating a ‘hostile work environment.’ ”

That term applies to sexual harassment, but racial, religious and national origin harassment as well, adds LeRoy.

“A Trump EEOC could redline ‘hostile work environment,’ thereby signaling that no federal employment policy prohibits the type of degrading language that Trump has used against women, Mexican, Muslims and other groups.”

For that matter, President Trump will have the opportunity to appoint high-ranking personnel that could in turn impact staffing decisions throughout the EEOC, potentially shifting the agency’s enforcement priorities, as Seyfarth Shaw attorneys recently pointed out.

In addition to the possibility that President Trump could designate a new EEOC chair, the agency will see General Counsel David Lopez leave at the end of 2016.

“[Lopez’s] impending departure means that President Trump will have an early opportunity to appoint his successor,” Seyfarth attorneys wrote. “These leadership changes at the highest levels of the EEOC will undoubtedly impact the direction the agency takes in the future.”

A Trump administration could also signal budgetary constraints for the EEOC, which may alter the way the agency approaches enforcement of discrimination guidelines.

“Historically, the EEOC adapted by focusing its enforcement efforts on systemic litigation, meaning targeting high-impact cases that address policies or patterns or practices that have a broad impact on a region, industry or entire class of employees or job applicants,” Seyfarth attorneys note. “The theory was that large, high-profile cases, settlements and judgments would have a greater deterrent effect, and would therefore affect a larger number of workers and industries.”

Faced with the possibility of fewer resources and new personnel, however, the EEOC of the near future could be forced to find “new and creative ways to adapt its enforcement program (and its own political viability) to the new reality.”

 

Wellness Battle: AARP vs. EEOC

A federal lawsuit was just filed against the government agency that handles the rules on workplace wellness programs, according to the New York Times, which calls the suit “the first major legal challenge of the regulations, and will add fuel to one of the hottest debates in healthcare.”

The main point of contention in the suit is whether some programs that require an employee to fill out a health risk assessment or undergo biometric testing for conditions such as high blood pressure are forcing workers to hand over private medical or genetic information.

The suit was filed by AARP, the consumer advocacy group that represents older Americans, in Federal District Court in Washington. In the suit, the group argues that the programs violate anti-discrimination laws aimed at protecting workers’ medical information. It also questions whether the programs are truly voluntary when the price of not participating can be high.

The suit takes aim at the Equal Employment Opportunity Commission, the federal agency responsible for issuing the rules governing what employers can do. When the agency issued new rules on the programs in May, it said employers could set the incentive as high as 30 percent of the annual cost of a worker’s health insurance coverage.

The cost of individual coverage averages $6,435 a year, according to the Kaiser Family Foundation, which means refusing to participate could cost workers nearly $2,000.

Claiming that the commission reversed its longstanding position to protect employees’ privacy, the AARP described its members as facing “imminent harm flowing directly from the rules.” Older people would have to either incur significant financial penalties or divulge medical information that “once revealed, will never be confidential again.”

The AARP is seeking a preliminary injunction to stop the new rules, which go into effect in 2017.

James Gelfand, senior vice president for health policy for the Erisa Industry Committee, a trade group representing employers on issues like health benefits, was critical of the AARP suit. Employers, which are never told which employees have certain conditions, are not using the information to discriminate, he said.

“There’s no evidence of these things happening,” he told the Times.

The EEOC so far has declined to comment on the new lawsuit.

The Democratic Party Platform: A Cheat Sheet

ThinkstockPhotos-476244660Turnabout is fair play — at least when it comes to politics in 2016. Last week I gave you a rundown on HR-related provisions in the Republican Party platform. Now it’s time for the Democrats.

Reflecting the unusual character of this year’s race, the document — formally approved on Monday — contains many direct attacks on GOP candidate Donald J. Trump. In some cases the narrative has to stretch a bit to do so. In declaring the party’s support for small business, for example, the platform says:

“The Democratic Party will make it easier to start and grow a small business in America, unlike Donald Trump, who has often stiffed small businesses—nearly bankrupting some—with his deceptive and reckless corporate practices.”

Anyway. Back to HR. Following are the main provisions of interest.

Minimum Wage: Language in the platform on the federal minimum wage reflects some tension between the party and Hillary Clinton’s presidential campaign. Clinton favors a raise from $7.25 an hour today to $12, leaving states and cities to set higher minimums. Her now-vanquished rival, Bernie Sanders, pushed for $15. What emerged in final platform language was a compromise: $15 … “over time.” The party also calls for eliminating minimum-wage exemptions for tipped workers and those with disabilities.

“No one who works full time should have to raise a family in poverty. … We should raise the federal minimum wage to $15 an hour over time and index it [to inflation].”

Employer incentives: The party also favors federal support for employers who “provide their workers with a living wage, good benefits, and the opportunity to form a union without reprisal.” The language doesn’t specify the form of this support, but suggests such employers would get preference in existing programs.

“The one trillion dollars spent annually by the government on contracts, loans, and grants should be used to support good jobs that rebuild the middle class.”

‘Card Check’: The platform reiterates a long-held argument in favor of allowing unions to organize workplaces where a majority of workers have signed cards indicating approval — with no election. The idea, called “card check,” has been proposed in Congress for more than a decade, so far without success.

The provision is part of a larger argument the party makes in favor of stronger legislative and regulatory support for labor unions.

“A major factor in the 40-year decline in the middle class is that the rights of workers to bargain collectively for better wages and benefits have been under attack at all levels. … We oppose legislation and lawsuits that would strike down laws protecting the rights of teachers and other public employees. We will defend President Obama’s overtime rule, which protects of millions of workers by paying them fairly for their hard work.”

Mandatory Arbitration: Federal regulators have been going after companies that require workers to sign arbitration agreements that waive their rights to sue or join class-action suits. The topic got a big boost this month with news that former Fox News chairman Roger Ailes is citing such a clause in the contract of former Fox commentator Gretchen Carlson to keep her sexual-harassment lawsuit out of court.

The 2016 platform adds the cause to a list of labor measures.

“We will support efforts to limit the use of forced arbitration clauses in employment and service contracts, which unfairly strip consumers, workers, students, retirees, and investors of their right to their day in court.”

Paid leave: After a passing reference to the party’s support for gender-based pay equity, the Democratic Party platform gets more specific about laws that would mandate family and medical leave.

“Democrats will make sure that the United States finally enacts national paid family and medical leave by passing a family and medical leave act that would provide all workers at least 12 weeks of paid leave to care for a new child or address a personal or family member’s serious health issue. We will fight to allow workers the right to earn at least seven days of paid sick leave. We will also encourage employers to provide paid vacation.”

Profit-sharing: Suggesting a program that may appeal to some employers, the party also backs an unspecified government incentive to some that provide profit-sharing bonuses to employees.

“Corporate profits are at near-record highs, but workers have not shared through rising wages. … we will incentivize companies to share profits with their employees on top of wages and pay increases, while targeting the workers and businesses that need profit-sharing the most.”

International trade: Trade policy is a sore subject for both parties, with Trump and Sanders railing against NAFTA and the proposed Trans-Pacific Partnership. The Democratic Party platform walks a narrow line, calling for tougher bargaining — without shutting the door on the TPP.

“Trade agreements should crack down on the unfair and illegal subsidies other countries grant their businesses at the expense of ours. … These are the standards Democrats believe must be applied to all trade agreements, including the Trans-Pacific Partnership.”

Immigration: The 2016 party platform reaffirms longstanding calls for comprehensive immigration policy reform — but makes no mention of increasing employment-based visa allowances to help companies recruit talent abroad.

“Democrats believe we need to urgently fix our broken immigration system—which tears families apart and keeps workers in the shadows—and create a path to citizenship for law-abiding families who are here, making a better life for their families and contributing to their communities and our country.”

EEOC Steps Up Data Collection on Discrimination

In case you missed this bit of news on your rush out the door to start your weekend last Friday:

In an effort to improve the information available about religious discrimination, the U.S. Equal Employment Opportunity Commission  announced it will implement changes in the collection of demographic data from individuals who file charges with the agency. These changes, the agency says, will allow it to collect more precise data about the religion of the individual alleging discrimination – allowing the EEOC, as well as the public, to recognize and respond to trends in charge data.

Additionally, the EEOC also announced the release of a one-page fact sheet designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination. The fact sheet is available at EEOC’s Youth@Work website, which presents information for teens and other young workers about employment discrimination.

Combating Religious Discrimination Today, a community engagement initiative coordinated by the White House and the U.S. Department of Justice, Civil Rights Division, brought together EEOC and other federal agencies to promote religious freedom, challenge religious discrimination, and enhance efforts to combat religion-based hate violence and crimes. The report from the effort is available at https://www.justice.gov/crt/file/877936/download.

Finally, EEOC plans to improve coordination with the Department of Labor’s Office of Federal Contract Compliance Programs, which enforces the prohibition of religious discrimination in employment by federal contractors and subcontractors. EEOC and OFCCP will work together to develop joint outreach and education efforts concerning discrimination based on religion.

Two Tough Lessons on Training

New commercial truck drivers must cover thousands of miles with a trainer before they can work on their own. For women, that means ThinkstockPhotos-57533192spending weeks in close quarters with a boss who most likely is a man.

What could go wrong?

A pair of recent Equal Employment Opportunity Commission cases suggests the situation is every bit as risky — both for drivers and employers — as you might think.

The cases involve two trucking companies that got in trouble over sexual harassment of female trainees. One escaped major sanctions and may even recover legal costs from the agency, thanks to a U.S. Supreme Court ruling that lawyers call a victory for employers.

The other … let’s just say it didn’t go well.

That company, Missouri-based Prime Inc., is one of the nation’s largest long-haul truck companies. After a female trainee charged the company with sexual harassment and the EEOC sued, the company in 2004 adopted a new procedure: women trainees were paired only with female trainers.

But in the end, the new procedure apparently did far more harm than good.

Because the company had only five women trainers, according to the EEOC, women trainees had to wait a year or more to get in. Men, however, were accepted immediately.

In 2011 the EEOC sued again, and U.S. District Court Judge Douglas Harpool didn’t have much trouble concluding the training practice was discriminatory. In April he signed a consent decree ordering the company to pay $2.9 million to 68 women who had applied to the company’s training program.

The settlements, which include back pay and compensatory damages, ranged from about $29,000 to nearly $92,000 each. The company also agreed to hire all the women immediately. In addition, the company paid $250,000 to another female driver trainee who had brought the complaint to the EEOC.

On top of that, the company — which finally ended its same-sex training policy in 2013, two years after the EEOC filed suit — promised not to reinstitute the practice.

Was Prime’s 2004 training policy a well-intentioned response to the first complaint that accidentally led to a second one? Or a passive-aggressive jab at women who had complained? In a final order in the case dated May 26, the judge says he can’t tell.

“While Prime’s same-gender training policy was illegal, misguided, and ill-advised, the court is not willing to find … [it] was evil or malicious,” Harpool writes.

The other trucking company fared better in its battle with the EEOC. On May 19 the U.S. Supreme Court unanimously found that Iowa-based CRST Van Expedited Inc. may be entitled to $4.5 million in legal expenses it incurred battling the agency over another sexual-harassment case.

The case stems from a 2005 claim by a female driver trainee who said she was sexually harassed. Two years later the EEOC filed a class-action suit on behalf of 250 women whom it said had been victimized. Most of those plaintiffs were dismissed, however, after the court found the EEOC had not properly investigated their claims.

Employment lawyers lauded the Supreme Court’s ruling as a victory for employers.  The ruling “has made clear that a defendant may be entitled to recover attorneys’ fees even absent a victory on the merits,” write Lindsey M. Marcus and Michael A. Warner Jr., partners in the employment law practice of Franczek Radelet in Chicago.

Though the outcomes were very different, the lesson for folks in HR is the same: Training, like trucking, can be a risky business.

 

 

 

 

 

 

EEOC Spotlights Diversity in Tech

A unusual forum held in the nation’s capital last week signals growing regulatory interest in the technology industry’s hiring and promotion practices.

ThinkstockPhotos-524374920The Equal Employment Opportunity Commission held the May 18 meeting about diversity in the industry as it released a report confirming what everyone already knows: tech is mostly white, male and young.

Does the hearing suggest the EEOC may soon come down on tech employers with formal guidance or even enforcement action? Labor lawyers say no — at least for now.

“I think the EEOC’s goal is to keep the issue in the spotlight,” says Erin M. Connell, a partner and employment lawyer at Orrick, Herrington & Sutcliffe in San Francisco who testified at the forum.

The effort continues a campaign by civil rights leader Rev. Jesse Jackson to pressure tech companies to become more diverse — and transparent — in employment, she notes.

Industry leaders “are hitting this at all levels,” says Connell, who counts many technology companies as clients. “They want to improve their numbers — because of the public pressure, because of the moral imperative … and because there’s a business case for diversity.”

Research has shown that “companies with higher diversity have better business results,” Connell says. This is particularly true when they serve — as tech companies do — a diverse population of customers.

The EEOC report looked at diversity data for the industry nationally as well as in Silicon Valley. It finds that whites account for 69 percent of the U.S. tech workforce, compared to 63 percent in all private employment. Among executives and managers in tech, 83 percent are white.

All employees Executives and managers
Tech All industries Tech All industries
White 69% 63% 83% 87%
Asian 14% 6% 11% 5%
Hispanic 8% 14% 3% 4%
Black 7% 14% 2% 3%
Other 2% 3% 1% 1%
Men 64% 52% 80% 71%
Women 36% 48% 20% 29%
Source: EEOC

Asian Americans also are overrepresented, compared to their share of all private employment. About 14 percent of tech employees, and 11 percent of tech managers and executives, are Asian American. That compares to 6 percent of workers across all industries.

Hispanic and black workers are, as a result, underrepresented in tech, often dramatically. And so are women: They account for 36 percent of all tech workers and 20 percent of executives and managers in tech, compared to nearly half of all jobs in private industry.

Though the report did not break down workers by age, another panelist at last week’s forum offered a scorching appraisal of the role age bias plays in the industry.

“Job postings declaring a preference for new or recent graduates are common, and some companies have actually specified which graduating class they are seeking,” said Laurie McCann, a senior attorney with the AARP Foundation, according to an EEOC news release.

Panelists didn’t necessarily agree about the best strategy for the industry to diversify. Some who testified put an emphasis on reform of industry hiring and funding practices. A cloistered world of CEOs and venture capitalists who look and think like each other perpetuates the problem, some argued. Greater emphasis on techniques to minimize unconscious hiring bias could help, they said.

Connell and others argued that improved educational opportunities are key, including industry-sponsored tech boot camps for girls and minority youth. Closing the gap in employment requires enlarging the pipeline of young people interested in the industry, she says.

In any case, Connell says she sees no sign that the EEOC plans to do more than nudge the industry to improve.

“It’s never off the table — I don’t want to give any false comfort there,” Connell says. But “I did not get the sense that any enforcement mechanisms are on the horizon.”