Photo: Public Domain
Photo: Public Domain

Typically with an incoming administration there is a waiting period of sorts before changes in pending and certainly existing regulations kick in.  The current administration, however, appears to be working at an accelerated pace toward upending the status quo.  So, it appears time for a quick check-in on where we are and what to expect.

On Inauguration day, White House Chief of Staff Reince Priebus Jan. 20 instructed federal agencies to freeze all pending regulations, a move that seems to include a number of labor and employment initiatives that were in the works under the Obama administration.

This type of freeze is not unusual when a new president takes office.  An action of this nature does not necessarily mean that significant changes are coming, but given candidate Trump’s campaign promise to roll back regulation on business, we can at least predict that the administration will be in no rush to move on the pending matters. Continue Reading Two Weeks Into the Trump Administration: Where are we with Labor and Employment Regulations?

Megyn Kelly
Photo: Robert Deutsch, USA TODAY

Words spoken yesterday morning by Fox News personality Megyn Kelly during an interview by George Stephanopoulos on Good Morning America.  Kelly was asked about the lawsuit filed by her former Fox News colleague Gretchen Carlson against former CEO Roger Ailes and Kelly’s own experiences with Ailes a decade ago.  According to Kelly, and as described in her new book, Ailes sexually harassed her and tried to entice her to engage in a sexual relationship.  She rebuffed his advances, called a lawyer and notified her immediate supervisor.  The supervisor vouched for Ailes and told Kelly the behavior was out of character and also advised Kelly to “ignore him.”  Kelly did just that, something relatively easy for her to do since she was assigned to the network’s Washington office and Ailes was in New York.  After about six months of being ignored, Ailes moved on, and he and Kelly had a cordial and mutually beneficial professional relationship until he left the network.

When pressed as to whether she regretted not having come out publicly about his advances ten years ago, Kelly told a story remarkably similar to that which women in workplaces tell every day.  First, she wasn’t sure that this wasn’t an isolated incident, especially given her supervisor’s statements and advice, which seemed to work.  Second, in her eyes, she had no one to go to.  She had barely a year’s tenure at the station, and Ailes, the CEO, was one of the world’s most powerful men.  She had done more than many women in her place might have done, but going above Ailes’ head to the owners or going to the general counsel would have been “a suicide mission” for her career.  She told Stephanopoulos the obvious, “I wasn’t the same Megyn Kelly then as I am now.”

Kelly’s responses are consistent with what many women who are victims of harassment say.  Why didn’t she speak out sooner?  Why didn’t President-Elect Trump’s accusers come forward years ago?  They didn’t know there were others; they didn’t have anyone they could safely tell; they didn’t think they would be believed.

The stories of Carlson, Kelly and countless other female employees at Fox put an exclamation point on the findings of an EEOC task force which spent a year studying the issue of workplace harassment.   They issued a report in June 2016, entitled  Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace”  which concluded that sexual harassment remains a significant workplace issue.  Among a great deal of information, the Report provides practical resources, including checklists and a “risk factor” analysis, to help employers assess their organization and respond appropriately to troubling behavior.

Reviewing the risk factor analysis is a necessary first step for employers looking to address this important workplace issue.  The task force focused on what they viewed to be environmental factors, organizational factors or conditions that might increase the likelihood of harassment rather than on the qualities that might lead one to be a likely victim or a likely harasser.  The Report says:

Most if not every workplace will contain at least some of the risk factors we describe below. In that light, to be clear, we note that the existence of risk factors in a workplace does not mean that harassment is occurring in that workplace. Rather, the presence of one or more risk factors suggests that there may be fertile ground for harassment to occur, and that an employer may wish to pay extra attention in these situations, or at the very least be cognizant that certain risk factors may exist. Finally, we stress that the list below is neither exclusive nor exhaustive, but rather a number of factors we felt were readily identifiable.

What follows is a list of some of the risk factors identified.

  • Homogenous Workforces: Sexual harassment  of women is most likely to occur in workplaces with primarily male employees; racial or ethnic harassment is more likely to occur where one race or ethnicity is predominant.
  • Workplaces Where Some Workers Do Not Conform to Workplace Norms: A feminine man in a predominantly male environment where crude language is common; a woman who challenges stereotypes by being “tough.”
  • Cultural and Language Differences: Diverse workplaces where “blocs” of workers from different cultures congregate; workers may not know the cultural norms of the workplace or their rights and be subject to exploitation.
  • Coarsened Social Discourse Outside the Workplace: Events outside the workplace like terrorist attacks and controversial elections may lead to discussions previously deemed unacceptable at work.
  • Workforces with Many Young Workers: Young workers who lack the maturity to understand the consequences of their behavior; unskilled or inexperienced young people who may be taken advantage of.
  • Workplaces with High Value Employees: Where some workers are viewed as highly valuable to the employer due to significant rainmaking or sales ability or particular highly sought after skills, there may be a reluctance to challenge poor behavior combined with a belief of the employee that the rules do not apply to them.
  • Workplaces with Significant Power Disparities: Executives and administrative staff, military or hierarchical organizations, the lack of knowledge of how to report or the fear that reporting may lead to the loss of a job.
  • Workplace Cultures that Tolerate or Encourage Alcohol Consumption: Reduced inhibitions, clients or customers feeling emboldened by alcohol.
  • Workplaces that Rely on Customer Service or Client Satisfaction: Entities where compensation is directly tied to customer service or client satisfaction, a tipped employee or a commissioned salesperson.

Employers should challenge themselves to look at these and the other risk factors set out in the Report to determine whether they are at risk for harassment issues.  They should review not only their policies, but how their policies are implemented and whether employees, including high level management employees, are held accountable for their behavior. Not only will such self-examination reduce the risk of litigation, it is good business with a direct link to recruiting and retaining talented and motivated employees.

Photo Credit: smlp.co.uk via Flickr (CC by 2.0)
Photo Credit: smlp.co.uk via Flickr (CC by 2.0)

In October, the EEOC unveiled its four year Strategic Enforcement Plan (SEP).  The SEP provides employers insight into areas the EEOC plans to focus on in the coming years.  This heads-up plan allows companies to take steps to ensure their businesses are compliant when there is a knock at the door.

The new SEP does not contain any major changes from the EEOC’s prior strategic direction.  Instead, the EEOC will continue its emphasis on many of the priorities that it set forth in the 2012-2016 four year SEP.  Employers should expect continued focus on the EEOC bringing litigation in large-scale, high-profile and high-impact cases.  Employers should also be careful when classifying workers as independent contractors or temporary workers.

For Fiscal Years 2017-2021, the EEOC has identified six priority areas under this new SEP.  Employers should be mindful of this direction and review their internal policies to confirm they are in conformity with the law in the following areas:

  1. Eliminating Barriers in Recruitment and Hiring

The EEOC will prioritize eliminating discrimination related to recruitment and hiring, including employer policies and practices of exclusion, screening that disproportionately impacts workers in protected categories, and placing of individuals into specific jobs inappropriately based upon protected categories.

Employers:  Review your hiring policies to confirm there are no discriminatory practices in your recruitment and hiring processes or procedures.  For example, revisit your employment applications and determine whether any tests or surveys you make employees complete disproportionately impact a protected class or are inaccessible for persons with disabilities.

  1. Protecting Vulnerable Workers, Including Immigrant, and Migrant Workers, and Underserved Communities from Discrimination

The EEOC will prioritize enforcing equality for immigrant and migrant workers and persons perceived to be members of these groups as well as other underserved communities.

Employers:  Identify those vulnerable, immigrant, and migrant workers and underserved communities in particular areas.  Employers should assess whether they have workforce policies and practices that impact these workers or underserved communities.

  1. Addressing Selected Emerging and Developing Issues

The EEOC will focus on the following areas: (a) inflexible leave policies that discriminate against individuals with disabilities; (b) pregnancy-related limitations that violate the Pregnancy Discrimination Act and the Americans with Disabilities Act Amendments Act; (c) the increasing and continued complexity of employment relationships and work-structures, including those relationships involving temporary workers, staffing agencies, independent contractors, and the on-demand economy (for example, Uber drivers); (d) LGBTQ discrimination; (e) discriminatory practices against persons of Arab, Middle Eastern or South Asian descent, those who are Muslim or Sikh, and persons perceived to be members of these groups.

Employers:  Review your leave policies and ensure leave is considered as a reasonable accommodation for employees who are unable to work or to return to work after a leave due to a disability.  Review your policies on providing accommodations for pregnant workers.  Schedule training for all managers/supervisors and employees to educate them about laws protecting employees against discrimination and each person’s obligation to promote and maintain a discrimination and harassment-free workplace.

Determine whether you are properly classifying workers as employees, independent contractors, or temporary/seasonal workers, as the EEOC continues its focus in this area as it has in the past many years.  Importantly, this SEP acknowledges the changing workforce in the 21st Century.  More and more people are working in alternative or contingent workplace arrangements, including the Uber-like on-demand jobs of today.  This SEP will likely involve the EEOC’s closer look and focus on these types of emerging work arrangements, and employers can expect the EEOC to challenge and litigate these high-profile issues in the coming years.

  1. Ensuring Equal Pay Protections for All Workers

The EEOC will renew its focus on safeguarding compensation systems and ensuring such practices do not discriminate against workers based on race, religion, ethnicity, sex, age, disability, or any other protected categories under the law.

Employers: Employers should review their current compensation policies and practices to ensure that all employees are receiving the pay to which they are entitled.  This may include an audit of the company’s compensation structure.  Companies should consider having outside legal counsel perform such an audit as that process may allow for certain privilege protections.

  1. Preserving Access to the Legal System

The EEOC will target employer policies that impede the ability of employees to pursue their workplace rights.  This includes aiming its efforts at overly broad waivers or releases and mandatory arbitration provisions as well as ending practices that deter employees from exercising their legal rights. The EEOC will also focus on ensuring employers maintain the appropriate applicant and employee data and records as required by EEOC regulations.

Employers:  Review the language in your waivers, releases, and arbitration agreements.  Review the language in your handbook policies to ensure they do not stifle employees ability to exercise their legal rights in the workplace.  Confirm your company is properly retaining documents as required under the law.

  1. Preventing Systemic Harassment

The EEOC will renew its heightened focus on ending harassment in the workplace.  Continued attention will be given to workplace policies and practices.  Again, focus will be given to deterrence measures that put a stop to future harassment.  With an expected increase in litigation, this includes the EEOC bringing enforcement actions in court against companies that seek monetary damages and injunctive relief.

Employers:  Review your handbook policies and procedures on appropriate behavior in the workplace and anti-harassment and retaliation policies.  Train managers, supervisors, and employees about expected behavior in the workplace and everyone’s obligation to promote a harassment and discrimination free workplace.

Employer should start preparing for the next four years today.

Open to the PublicEffective October 1, 2016, “places of public accommodation” in Massachusetts are prohibited from discriminating against persons based on their gender identity.  Under this new anti-discrimination law signed by Governor Charlie Baker this summer, places of public accommodation must allow individuals to use or access gender-segregated areas such as bathrooms and locker rooms consistent with their gender identity.

A place of public accommodation is “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public,” including:

  • Hotels, inns, motels, campgrounds, resorts;
  • Restaurants, bars, and other establishments serving food or drink;
  • Theaters, concert halls, sports stadiums, and other places of entertainment;
  • Auditoriums, convention centers, lecture halls, houses of worship, and other places of public gathering;
  • Sales and rental establishments, including stores, shopping centers, automobile rental agencies, and other retail establishments;
  • Service establishments, including laundromats, dry-cleaners, banks, barber shops, travel agents, gas stations, funeral parlors, employment agencies, and providers of professional services such as lawyers, doctors, dentists, accountants, and insurance agents;
  • Health care facilities, including dental and medical offices, pharmacies, clinics, hospitals, nursing homes, and other health facilities;
  • Transportation vehicles of all types and transportation stations, terminals, depots, platforms and facilities appurtenant thereto;
  • Museums, libraries, galleries, and other places of public display or collection;
  • Parks, zoos, amusement parks, and other places of recreation;
  • Child care centers, senior citizens centers, homeless shelters, food banks, adoption agencies, and other social service establishments;
  • Gymnasiums, health spas, bowling alleys, swimming pools, beaches, golf courses, and other places of exercises or recreation.

The Massachusetts Commission Against Discrimination (MCAD) oversees enforcement of this law.  It is authorized “to adopt, promulgate, amend, and rescind rules and regulations or to formulate policies and make recommendations to effectuate” its purposes.

Gender identity has been a protected category in the Commonwealth in employment, education, and housing since legislation in 2011.  Employers with six or more employees are prohibited from discriminating against transgender individuals in the workplace.   Following the adoption of that law, MCAD issued a fact sheet that advised employers that denying employees permission “to use the bathroom of one’s identifying gender could be viewed as discriminatory.”

The EEOC has also issued a fact sheet entitled “Bathroom Access Right for Transgender Employees Under Title VII of the Civil rights Act of 1964.”  Under that publication, the EEOC takes the position that discrimination based on transgender status is sex discrimination in violation of Title VII.  Thus, the EEOC would find the denial of equal access to a common restroom of the employee’s gender identity or requiring an employee to undergo or provide proof of surgery or other medical procedure as sex discrimination.  That publication also cites to OSHA’s A Guide to Restroom Access for Transgender Workers.  OSHA advises that the best restroom policies include options, which employees may choose from, and include:

  1. Single-occupancy gender-neutral (unisex) facilities; and
  2. Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

OSHA has noted that, “Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.”

Some businesses have expressed safety concerns about people accessing segregated facilities like bathrooms or locker rooms for improper reasons.  In the education setting, my colleague Linda Johnson has written about the U.S. Supreme Court’s decision on August 3, 2016 to put on hold a lower federal court ruling that a transgender male student be allowed to use the bathroom of his gender identity until the Supreme Court rules on the School Board’s petition for appeal.  My colleague Adam Hamel has also written about laws, and proposed laws, which seek to limit access to public restrooms based on the gender assigned to a person at birth and what those “bathroom bills” mean for employers.

Massachusetts employers who open their doors to the public should train their employees on this new law.  Employees need to understand these gender identify protections for members of the public accessing their facilities.  Companies should also review their non-discrimination policies to ensure that they are up-to-date.

Co-written by: Jacqueline Botchman, a third year law student at the University of New Hampshire School of Law

The U.S. Equal Employment Opportunity Commission on Wednesday, July 13, 2016 publicized a revised proposal to expand pay data collection through the Employer Information Report (EEO-1). The proposed revision would require private employers and federal contractors with 100 or more employees to include pay and hour data by sex, race, and ethnicity as well as job category to their EEO-1 starting in 2017. Data collected will help the EEOC better understand the scope of the pay gap and focus enforcement resources on employers that are more likely to be out of compliance with federal laws.

The proposal, if accepted, will require employers to collect data on ten job categories by both gender and race and ethnicity.

  • The ten EEO-1 job categories are: Executive/Senior Level Officials and Managers; First/Mid-Level Officials and Managers; Professionals; Technicians; Sales Workers; Administrative Support Workers; Craft Workers; Operatives; Laborers and Helpers; Service Workers.
  • The seven race and ethnicity groups are: Hispanic or Latino; White (Not Hispanic or Latino); Black or African American (Not Hispanic or Latino); Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino); Asian (Not Hispanic or Latino); American Indian or Alaska Native (Not Hispanic or Latino); and Two or More Races (Not Hispanic or Latino).

The proposal’s goal is to combat pay discrimination by assisting the agencies in identifying possible pay discrimination and helping employers in promoting equal pay in their workplaces.

In the press release, EEOC Chair Jenny R. Yang stated, “More than 50 years after pay discrimination became illegal, it remains a persistent problem for too many Americans.” “Collecting pay data is a significant step forward in addressing discriminatory pay practices. This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal anti-discrimination laws.”

U.S. Secretary of Labor Thomas E. Perez added, “Better data means better policy and less pay disparity. As much as the workplace has changed for the better in the last half century, there are important steps that we can and must take to ensure an end to employment discrimination.”

Employers must be careful as there are laws protecting employees from sharing information or complaining about pay. As of January 1, 2015, New Hampshire prohibits employers from retaliating against employees for disclosing their wages to another employee. (To view this statute, click here.) Additionally, an employer is prohibited from discharging or discriminating against an employee in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning New Hampshire’s equal pay laws. Under these laws, an employer may not discriminate on the basis of sex in the payment of wages. An employer who retaliates against the employee could be charged with a misdemeanor. (To view this statute, click here.) Employers should train managers and supervisors on this law.

Members of the public have until August 15, 2016, to submit comments on the revised rule proposal to the United States Office of Management and Budget. The link to provide information to the EEOC is http://www.regulations.gov, which is the Federal eRulemaking Portal. Members can also submit a comment by e-mail or mail.

Want to learn more about our Labor and Employment Practice Group? Please contact us with any questions.

Employers have a new resource document to use when determining when and how to grant employees leave as a reasonable accommodation under the Americans with Disabilities Act.  The document, published by the EEOC, is entitled Employer-Provided Leave and the Americans with Disabilities Act.

The ADAstock-photo-disability-medical-message-background-health-care-poster-design-121187878 applies to employers with 15 or more employees.  It requires employers to provide disabled employees with reasonable accommodations that allow them to perform the essential functions of their jobs unless doing so would cause an undue hardship.  Reasonable accommodations may include providing employees with leave from work or modifying a company’s leave policy for an employee with a disability.

In issuing this technical assistance, the EEOC noted the increase in disability charges.  2015 hit a new high for disability discrimination claims brought before the agency.  The EEOC intends this resource document as a way to educate employers about leave as an accommodation.  For each category addressed, the EEOC provides examples or scenarios to assist employers.

As noted in its release of this document, “[o]ne troubling trend the EEOC has identified in ADA charges is the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation. These policies often serve as systemic barriers to the employment of workers with disabilities. They may cause many workers to be terminated who otherwise could have returned to work after obtaining needed leave without undue hardship to the employer. EEOC regulations already provide that reasonable accommodations may include leave, potentially including unpaid leave that exceeds a company’s normal leave allowances.” 

Commissioner Victoria Lipnic added, “Leave issues often present some of the toughest situations for employers and employees to deal with in our workplaces. This document provides needed one-stop guidance on how the EEOC approaches many of the common issues we see.”

The key topics addressed include:

  • Equal Access to Leave Under an Employer’s Leave Policy.  Employers must provide employees with access to leave “on the same basis as other similarly-situated employees.”  Policies may require all employees to provide documentation to substantiate the need for leave — like a doctor’s note.
  • Granting Leave as a Reasonable Accommodation.  Employers must provide employees with leave as a reasonable accommodation.  This includes providing unpaid leave to an employee with a disability so long as doing so does not create an undue hardship for the employer.  An employer is not required to provide paid leave beyond its paid leave policy.  Employers may also not penalize an employee for taking leave as a reasonable accommodation.
  • Communication after an Employee Requests Leave.  This is also referred to as the “interactive process.”  Employers must engage in the interactive process after a disabled employee requests leave, or additional leave, for a medical condition.  Employers must treat the request as a request for a reasonable accommodation.  As the EEOC explains, the interactive process is “a process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.”  At times, the employer may need more information so that it can understand the amount and type of leave, the need for leave, and whether there is a reasonable accommodation available other than leave.
  • Communication During Leave and Prior to Return to Work.  Employers should continue to engage in the interactive process if the disabled employee seeks additional leave due to a medical condition.  Employers may also ask for information from the employee as to the leave and the employee’s return to work.
  • Maximum Leave Policies.  Employers will be found in violation of the ADA if they enforce maximum leave policies.  While employers may have policies that set a maximum amount of leave the employer will allow, employers may need to grant exceptions to disabled employees and allow them additional leave beyond the maximum as a reasonable accommodation.
  • Return to Work and Reasonable Accommodation (Including Reassignment).  Employers will be found in violation of the ADA if they require employees to be 100% recovered or have no restrictions before they can return to work.  Employers should continue engaging in the interactive process if employees return to work with restrictions.  This allows discussion as to reasonable accommodations that will allow an employee to perform the essential functions of the job or consider reassignment to a vacant job position for which the employee is qualified.
  • Undue Hardship.   Employers may determine whether granting leave, or additional leave, is an undue hardship.  Factors that may be considered include impact on the employer’s operations and ability to serve customers, impact on co-workers and duties of job, whether intermittent leave is predictable or unpredictable, whether there is flexibility on when leave is taken, frequency of the leave, and amount and/or length of leave.

The EEOC’s resource document ends with citations to additional guidance on leave laws under the ADA, Family and Medical Leave Act (FMLA), and  worker’s compensation.

Companies should review their policies and procedures on leave so that they can make sure they are properly considering requests for leave by disabled employees.  Training on leave laws, leave requests, and the interactive process are also considered best practices.  Consultation with counsel is also advisable as properly considering leave or extended leave requests and documenting the interactive process may avoid liability.

The United States Equal Employment Opportunity Commission (“EEOC”) announced on June 2, 2016 its intention to issue a revised comprehensive enforcement guidance addressing national origin discrimination under Title VII.  The proposed guidance will be open for public comment for thirty days only beginning July 1, 2016.

The EEOC has issued a number of guidance documents in the past several years addressing such matters as pregnancy discrimination, the wearing of religious garb at work and privacy issues associated with employer wellness programs.  National origin discrimination includes discrimination on the basis of an individual’s or his or her ancestors’ place of origin.  The issue of national origin discrimination was last addressed by the EEOC in a guidance fourteen years ago.  In determining that the time was right for new guidance the EEOC commented on the fact that the US workforce “is ethnically diverse, reflecting both immigration and the ongoing assimilation of first- and second-generation Americans.”  In addition, in the last decade the immigrant population in 13 states with historically smaller  established immigrant communities grew to more than twice the national average.

Although agency guidance is not law, it is the enforcing agency’s interpretation of how applicable laws and regulations should be applied.  Thus, a guidance will have substantial persuasive effect and will give the employer a roadmap for avoiding possible claims of discrimination.  In fiscal year 2015, 11 percent of private sector charges filed with the EEOC contained a national origin component.

The revised guidance addresses job segregation, human trafficking and intersectional discrimination (discrimination due to a combination of two or more protected bases such as national origin and religion).  The EEOC itself identified protecting “immigrant, migrant, and other vulnerable populations” as part of its most recent strategic enforcement plan.

Input may be provided by mail to the EEOC at Public Input, EEOC, Executive officer, 131 M Street, N.E., Washington D.C. 20507 or via email by using www.regulations.gov.

Photo: jaliyaj via Flickr (CC by 2.0)
Photo: jaliyaj via Flickr (CC by 2.0)

Last month, national retail chain Target announced that it would allow transgender employees and customers to choose the restroom and fitting room facilities that correspond to their gender identity.  Target took this step in response to laws, and proposed laws, in places like North Carolina and elsewhere, which seek to limit access to public restrooms based on the gender assigned to a person at birth.  These laws, and Target’s actions, have sparked an animated debate with people expressing strong feelings on both sides of the issue.  All of this has left many employers wondering what their responsibilities are with regard to bathroom access for their employees.

This week, the EEOC issued a Fact Sheet on Bathroom Access Rights of Transgender Employees Under Title VII of the Civil Rights Act of 1964, which sheds some light on the matter.  The EEOC reminds employers that Title VII, which applies to private employers with 15 or more employees, prohibits employment discrimination based on sex, which encompasses gender identity.  The EEOC referenced two recent agency decisions and an opinion from the Fourth Circuit Court of Appeals, all relating to discrimination based on transgender status, and involving access to restrooms and locker rooms.  The EEOC points out that contrary state law or local ordinance will not provide any defense to an employer facing charges of discrimination under Title VII.  In an apparent acknowledgement of the deeply held beliefs asserted by the proponents of the so called “Bathroom Bills,” the EEOC emphasizes that Title VII only addresses workplace conduct, not personal beliefs.  As the EEOC explains, “these protections do not require any employee to change beliefs.  Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.”

OSHA has also offered its guidance to employers on the issue of providing bathroom access to transgender employees.  OSHA’s Sanitation Standard requires employers to provide employees with prompt access to appropriate sanitary facilities.  It is OSHA’s position that this requires employers to permit employees to use the facilities that correspond with their gender identity.  OSHA suggests that employers provide employees with various options that employees may, but are not required to, choose to use, such as gender-neutral single-occupant restrooms or multiple-occupant restroom facilities with lockable single-occupant stalls.  However, OSHA emphasizes that, regardless of the workplace’s layout, “all employers need to find solutions that are safe and convenient and respect transgender employees.”

So, while the cable news talking heads and social media commenters continue to have their say about the bathroom wars, the EEOC and OSHA have made their position on the issue clear.

Photo: dbking via Flickr (CC by 2.0)
Photo: dbking via Flickr (CC by 2.0)

As has been the case since 2009, the Equal Employment Opportunity Commission again reported that retaliation remained the most frequently filed discrimination charge in fiscal year 2015.  With the continued upward trend of these claims, the EEOC has issued new proposed guidance which broadly interprets provisions of this protective legislation. The last guidance it issued on retaliation was in 1998.

The purpose of the guidance is to inform the public about how the EEOC may guide its personnel in processing and investigating discrimination charges filed by employees and in considering what litigation it may bring for enforcement.  Essentially, it is used as a reference by EEOC staff in making decisions on claims.  The proposed guidance can be found at http://www.eeoc.gov/eeoc/newsroom/release/1-21-16a.cfm.

An employee bringing a retaliation claim must prove:  (1) the employee engaged in a statutorily-protected activity; (2) the employee suffered an adverse employment action; and (3) the protected activity and the adverse employment action were causally connected.  The new guidance takes an aggressive position on what is within the scope of protected activity in the workplace.  For example, the EEOC interprets “participation activity” to include an internal complaint made with an employer whereas courts generally require some connection to an actual administrative complaint or the litigation process.  This difference in scope from the EEOC can have significant consequences for employers.

While EEOC guidance is not controlling, it can be persuasive to a court.  As the US Supreme Court explained in Young v. United Parcel Service, Inc. issued in March 2015, the weight placed on guidance should be based upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.”

Companies have 30 days to review and comment on the draft guidance, which ends on February 24, 2016.  Input may be submitted at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.  The EEOC will review all comments and consider revisions to the draft guidance.

Photo: Pictures of Money via Flickr (CC by 2.0)
Photo: Pictures of Money via Flickr (CC by 2.0)

Seven years after the Lilly Ledbetter Fair Pay Act was signed into law, the Obama Administration has announced additional steps to address the gender pay gap in this country.  Specifically, the Equal Employment Opportunity Commission (EEOC) has proposed changes to the Employer Information Report (EEO-1) that would require businesses with more than 100 employees to submit detailed salary and pay information for each employee broken down by gender, race and ethnicity.  The White House says the goal of this proposal is to “focus public enforcement of our equal pay laws and provide better insight into discriminatory pay practices across industries and occupations.”  Both the EEOC and the Office of Federal Contract Compliance Programs would have access to the pay data for enforcement purposes.

The proposed Revision to the EEO-1 was published in the Federal Register on February 1, 2016.  Interested parties have until April 1, 2016 to submit comments.  While the rulemaking process is expected to be complete by September 2016, affected employers will not need to submit the additional salary and pay information until 2017 if the Revision is adopted as is.

To prepare for the new reporting requirements, employers with more than 100 employees should begin evaluating their pay practices now to identify any areas of pay disparity that should be addressed before the 2017 reporting period begins.  Although this is information that employers should routinely examine and keep records of, even if just to be aware of potential inequities in salary structures and to be able to defend themselves against pay disparity claims, the revised reporting requirement will add a significant additional burden on companies required to complete the EEO-1.

The proposed Revision to the EEO-1 can be found here.