On October 24, 2018 the Equal Employment Opportunity Commission (“EEOC”) announced that Denton County Texas will pay $115,000 to a female physician formerly employed by the county. The EEOC filed suit in August 2017 in the U.S. District Court for the Eastern District of Texas alleging that Dr. Martha C. Storrie was paid less than her male counterpart for the same job in violation of the Equal Pay Act. The court entered judgment in favor of the EEOC.
On October 4, 2018, the Equal Employment Opportunity Commission (“EEOC”) released preliminary data on sexual harassment claims for FY 2018, which ended on September 30, 2018. The document, entitled “What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment” summarizes the enforcement and prevention actions taken by the EEOC in the almost two years since the agency released the report of its Select Task Force on the Study of Harassment in the Workplace in June 2016.
The EEOC announced on February 27, 2018 that it had reached a settlement in the agency’s first lawsuit alleging that parental leave policies which granted more rights to mothers discriminated against new fathers. Details of the settlement were not announced.
Our April 5, 2017 post highlighted a decision of the Seventh Circuit Court of Appeals finding that Title VII protections against discrimination on the basis of gender extend to sexual orientation. That court referenced US Supreme Court decisions such as the 2015 same sex marriage case, Obergefell v. Hodges, in concluding that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”
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?
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.
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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.
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.
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.
Employer-sponsored wellness programs are a popular tool to incentivize healthy living and maintain an active, engaged workforce. But such programs can present legal risks to employers and must be specifically tailored to avoid running afoul of certain employment laws. One such law is the Genetic Information Nondiscrimination Act of 2008 (GINA), a federal law enforced by the U.S. Equal Employment Opportunity Commission.
Among other restrictions, GINA prohibits employers from requesting, purchasing, or requiring disclosure of “genetic information” about job applicants, current and former employees, and trainees. Genetic information is defined broadly in the statute and implementing regulations, and includes information about an employee’s spouse’s current or past health status.
One exception to GINA’s prohibition on requesting genetic information is when an employee voluntarily accepts health or genetic services from their employer, such as services offered through a wellness program. Employers may provide financial or in-kind incentives to employees for voluntarily participating in wellness programs. However, the incentives must be limited in way that does not make participation involuntary.
There is currently a gap in the law that prevents employers from offering incentives to employees for their spouses’ participation in the wellness program. This is because in applying to participate in a wellness program, employees are often required to complete health risk assessments (HRAs). Asking an employee’s spouse to complete an HRA could violate the statute because a spouse’s health status information is considered “genetic information” about an employee. Thus, while an employee could receive incentives for his or her own participation in a wellness program, that same employee could not receive incentives for their spouses’ participation, even though the spouse is part of the employer’s health plan.
On October 29, 2015, the EEOC announced a new proposed rule that would remedy this apparent contradiction in GINA. Under the proposed rule, an employer will be allowed to request information about the current or past health status of an employee’s spouse who is covered by the employer’s group health plan and is completing an HRA for a wellness program on a voluntary basis. The rule clarifies that an employer may offer incentives for a spouse’s participation in a wellness program, as long as the employer follows certain requirements in requesting the spouse’s health information.
These requirements include that the spouse provide prior, knowing, written, and voluntary authorization for the employer to collect genetic information. The authorization form must describe the type of genetic information that will be obtained and the general purposes for which it will be used.
While the new rule provides some clarity to employers, it is important to note a key distinction in GINA’s definition of “genetic information.” The limited permissible disclosure proposed by this rule applies only to current or past health status, but not other genetic information, such as results of genetic tests. Employers should therefore be mindful that their HRAs and authorization forms cannot ask for information about the results of genetic tests.
Employers should also limit how they use the health information gleaned from HRAs and other forms associated with wellness programs. GINA strictly prohibits any form of discrimination based on an employee’s genetic information or makeup, so employers must be sure to compartmentalize how they use the genetic information obtained as part of wellness programs, and not use this information to make job-related decisions.