Friday, August 8, 2014

Mad Men: The EEOC Advertises its Aggressive Agenda

 
 
 
I.  Introduction
"The government has prohibited us from doing things like that, Peggy, they feel that it is not in the public interest."
~  Don Draper
            The television series “Mad Men” is set in an early 1960’s advertising agency, where employment discrimination and sexual harassment are common workplace occurrences.  One episode features a male employee openly chasing and groping a female secretary during an office party, egged on by the cheers and laughter of senior management.  Other episodes deal with employment decisions made on the basis of race, sex and religion.  Sexist jokes and comments in the office contribute to a generally hostile work environment.  
Don Draper and the rest of the partners at Sterling Cooper Draper Pryce Advertising Agency didn’t have to worry about being sued, because at the time, none of this was illegal.  However, that was all about to dramatically change, with the passage of the Civil Rights Act of 1964, and the subsequent establishment one year later of the Equal Employment Opportunity Commission (“EEOC”).
            However, as the EEOC prepares to celebrate its 50th anniversary next year, the federal agency has increasingly come under fire for what critics consider its misplaced priorities, overly aggressive enforcement agenda and a radical departure from its traditional core mission.  In this regard, critics claim the EEOC is exceeding the authority granted it by Congress and the laws it is charged with enforcing.  In an ironic reversal of roles, the EEOC is now finding itself the target of lawsuits.
The purpose of this article is to make employers and human resource professionals aware of the EEOC’s latest implementation of its Strategic Enforcement Plan and how it will impact your workplace.
II.  The EEOC’s Agenda in 1965
On July 2, 1964, President Lyndon Jonson signed into law the Civil Rights Act of 1964. Title VII of the Act prohibited discrimination by covered employers on the basis of race, color, religion, sex or national origin.  One year later, on July 2, 1965, the EEOC was established as the federal agency in charge of enforcing Title VII.  The EEOC’s first case came on November 4, 1965, when Thomas L. Jenkins, an African-American employee of United Gas Corporation in Texas, filed the first EEOC Charge of Discrimination, alleging systemic racial discrimination in his employer’s promotion practices.
Over the years, the EEOC would be further charged with the enforcement of other federal employment laws, including the Pregnancy Discrimination Act of 1978, the Age Discrimination in Employment Act, the Americans with Disabilities Act of 1990 and more recently, the Genetic Information Nondiscrimination Act of 2008
            III.  The EEOC’s Agenda in 2014
Generally speaking, the EEOC has made no secret of its general agenda over the next two years.  However, the devil is in the details.  It is the specific and aggressive implementation of the goals outlined in the EEOC’s Strategic Enforcement Plan for 2013 – 2016 that has caused serious concern among employers.
Released in January 2013, the Strategic Enforcement Plan establishes priorities for the EEOC in investigation, enforcement and litigation, with an emphasis on attacking “systemic discrimination.”  The Commission stated that the guiding principle for the Strategic Enforcement Plan is the agency's belief that "targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace."  The Commission’s stated nationwide priorities are as follows:
1.         Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.
2.         Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
3.         Addressing Emerging and Developing Issues. The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.
4.         Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender.
5.         Preserving Access to the Legal System. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.
6.         Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC will pursue systemic investigations and litigation and conduct a targeted outreach campaign to deter harassment in the workplace.
A.        Increased EEOC Litigation Against Employer Use of Criminal Background/Credit Checks
Within the last year, the EEOC has filed lawsuits against national retailer Dollar General, and car maker BMW Manufacturing Co., LLC, alleging criminal background check policies that systematically discriminated against African-American job applicants or existing employees.  The EEOC continues to bring similar lawsuits against other employers nationwide.
Employers have long used criminal background checks as a hedge against employee theft, and in more recent years as a response to the increase in workplace violence.  In some instances, a failure to do a criminal background check on an employee could expose an employer to tort liability.  It’s important to note that currently, no federal law prohibits the consideration of criminal convictions in making employment decisions
The EEOC takes the position that utilizing criminal background checks in making employment decisions may be a violation of Title VII, reflects the “systemic discrimination” targeted in the Strategic Enforcement Plan, and it recently has revised its enforcement guidelines to reflect that position. 
The stated rationale for EEOC’s stance is that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects African-Americans and Hispanics, who statistically have higher rates of arrest and criminal conviction.  This is referred to as disparate impact discrimination.  The EEOC’s revised guidelines makes clear that the use of criminal histories also could support a claim of disparate treatment discrimination, including when decisions are made based on stereotypes about classes of individuals.  The EEOC takes the same position on the use of credit histories of job applicants.
Under the EEOC’s guidelines, for an employer to avoid Title VII disparate impact liability for excluding an individual with a criminal record, the employers must show that any reliance on a criminal history is job related and consistent with business necessity.  In doing so, an employer must show that it considered three factors: (1) the nature and gravity of the offense, (2) the amount of time since the conviction, and (3) the relevance of the offense to the type of job being sought.  The EEOC’s guidelines place the burden on employers to develop screening guidelines to individually assess each applicant/employee to determine whether a criminal history may be used as a factor in any employment decision.
To the extent there is good news, the EEOC has not been doing well in these lawsuits and has found itself the target of harsh criticism by federal courts.  In the Maryland case of EEOC v. Freeman[1], the district court granted summary judgment in favor of the defendant, dismissing the EEOC’s claim that the company’s background check policies violated Title VII.  In so doing, the Judge in the case recognized Freeman’s policy of conducting criminal history or credit record background checks on potential employees as “a rational and legitimate component of a reasonable hiring process.”  The District Court chastised the EEOC for pursuing a disparate impact discrimination claim based on “a theory in search of facts to support it,” disregarding the EEOC’s expert’s report as “laughable” and “an egregious example of scientific dishonesty.”
            Earlier this year, the United States Court of Appeals for the Sixth Circuit also issued a stinging rebuke to the EEOC.[2]  In Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation, the EEOC sued the educational services company for implementing credit checks after discovering that some employees had stolen student’s financial aid payments.  The credit check policy applied to job applicants seeking positions where they would have access to cash or financial information.  The EEOC claimed the policy disproportionally impacted  “more African-American applicants than white applicants.”  In its affirming the district court’s grant of summary judgment in favor of the company, the Sixth Circuit blasted the EEOC’s theory of liability, and its reliance on the very same expert witness discredited in the EEOC v. Freeman case:
The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by person with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.
In ruling against the EEOC, the Sixth Circuit noted that pursuant to its own personnel handbook, the EEOC runs the very same type of credit checks on its employees because “[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations.”  The court specifically and wryly noted that this was the very same reason that Kaplan adopted its policy.
            The EEOC’s attack on the use of criminal background checks has sparked calls for Congressional action to rein in the EEOC.  It’s important to note that currently, no federal law prohibits the consideration of criminal convictions in making employment decisions, and the EEOC’s guidelines concede that point.  It’s also worth noting that the EEOC has no actual authority to issue binding guidelines because Congress intentionally withheld rulemaking authority from the EEOC when it passed the Civil Rights Act of 1964.
            In a June 10, 2014 hearing before the House Subcommittee on Workforce Protections, a spokesperson for the U.S. Chamber of Commerce testified that the EEOC’s efforts to regulate background checks puts employers “between a rock and a hard place” as far as complying with the EEOC’s enforcement guidelines, and that “[t]he EEOC gives short shrift to common sense employer concerns — workplace safety and the hiring of violent felons, sexual harassment concerns and the hiring of rapists, trust and reliability in one’s workforce.”  The Subcommittee also heard from a consumer activist who testified as to the rape and murder of her sister by a twice convicted sex offender who had been hired by a subcontractor doing work at the sister’s home.  In that instance, neither the contractor nor the subcontractor had conducted a criminal background check of the employee. 
The president of the National Small Business Association testified before the Subcommittee as to specific concerns about the EEOC’s guidelines:
·         EEOC’s requirement of individual assessment of job applicants difficult for small employers without human resource departments or access to specialized legal advice.
·         EEOC guidelines doesn’t offer “safe harbor” from Title VII liability even if state law requires a criminal background check.
·         Compliance with EEOC guidelines will not shield employers from tort liability for negligent hire if an applicant with a criminal record subsequently injures customers or co-workers.
·         Potential job killer because employers may choose not to hire rather than deal with EEOC’s complicated guidelines.
            The State of Texas has taken it a step further by filing a lawsuit against the EEOC, alleging that the federal agency has overstepped its statutory authority by imposing limits on employers’ use of criminal background checks in making employment decisions.[3]  The lawsuit alleges that the EEOC “purports to limit the prerogative of employers, including Texas, to exclude convicted felons from employment” and that the State of Texas and “its constituent agencies have the right to impose categorical bans on the hiring of criminals, and the EEOC has no authority to say otherwise.”
In its lawsuit, the State of Texas is asking the U.S. District Court to declare that the EEOC’s use of the guidelines are invalid and to enjoin the EEOC from challenging the State’s policy of not hiring convicted felons for certain state jobs.  Attorney Generals of other states also have criticized the EEOC’s guidelines, but to date, have taken no legal action.
While employers are prevailing in these cases brought by the EEOC, more often than not it can be a pyrrhic victory, where the employer is forced to bear the cost and time of defending itself against the resources of the federal agency.  So what are employers’ options to avoid litigation, but to still utilize background checks to maintain safety and security in the workplace?  Barring any imminent Congressional intervention, employers should utilize the following:
          Limit criminal background checks to seeking information only on crimes that you have identified as job related and consistent with business necessity.
          Eliminate blanket policies or practices that exclude people from employment based on any criminal record, except to the extent required for employment by an employer who is a federal contractor.
 
          Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
 
           Identify essential job requirements and the actual circumstances under which the jobs are performed.
           Determine the specific offenses that may demonstrate unfitness for performing such jobs.
           Identify the criminal offenses based on all available evidence.
           Determine the duration of exclusions for criminal conduct based on all available evidence.
           Record the justification for the policy and procedures.
 
           Note and keep a record of any consultations and research considered in crafting the policy and procedures.
 
          Include an individualized assessment.  Prior to making a decision to not hire based on a criminal history, interview the applicant about the circumstances to determine if there are mitigating factors or mistakes in the information. Allow the applicant to provide information on the following:
 
           The facts or circumstances surrounding the offense or conduct.
           The number of offenses for which the individual was convicted.
           Older age at the time of release from prison.
           Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct.
           The length and consistency of employment history before and after the offense or conduct.
 
           Rehabilitation efforts, e.g., education/training.
           Employment or character references and any other information regarding fitness for the particular position.
          Document the reasons you considered certain convictions to be job related and consistent with business necessity for each position. This can be time-consuming and tedious (especially if your Company has a large number of different positions), but will strengthen your case if the EEOC decides to investigate your Company's policy.
          If federal laws prohibit hiring for particular positions based on a criminal history, do not have a policy that is more restrictive for those positions. For example, if federal law prohibits hiring an individual with a conviction in the last ten years, do not have a policy based on convictions in the last fifteen years.
          Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
          Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
 
B.        Attacks on Separation Agreements
            Separation or severance agreements are commonly used by employers when the employment relationship ends.  In exchange for some type of payment, the employee agrees to a general release of any potential claims he or she might have against the employer, and possibly other provisions, such as confidentiality and non-disparagement clauses.  For the employer, it is an assurance that the business will not have to deal with the cost and time of any future litigation brought by the departing employee.
            In its Strategic Enforcement Plan, the EEOC focused on employers’ policies and practices it claims discourage or prohibit individuals from exercising their legal, including overly broad waivers or settlement provisions that prohibit filing EEOC charges or providing information in EEOC or other legal proceedings.  The EEOC is pursuing this agenda through the recent filing of two federal lawsuits. 
What is disturbing about the EEOC’s posture is that the severance agreement language it is attacking is commonly used by employers nationwide.   In the event the EEOC were to prevail, it could result in chaos for many businesses, casting into doubt the validity of such standard severance agreements, and potentially allowing former employees to revive previously barred claims.
            On February 7, 2014, the EEOC filed its first suit against CVS Pharmacy, Inc. in the United States District Court for the Northern District of Illinois.[4]  In that suit, the EEOC alleges that CVS required employees to sign “an overly broad, misleading and unenforceable Separation Agreement” in order to receive a severance payment.  The lawsuit alleges a pattern and practice of CVS interfering with employees' Title VII in a way that “deters the filing of charges and interferes with employees' ability to communicate voluntarily with the EEOC . . . .”  Specifically, the Complaint attacks the following provisions in CVS’s severance agreement:
·         A cooperation clause, requiring the employee to advise CVS, among other things, of any administrative investigation.
·         A non-disparagement clause, forbidding the employee from making statements that disparage the business or reputation of the company, and any officer, director or employee of the company.
·         A non-disclosure of confidential information clause, forbidding the disclosure of information concerning the company’s personnel, including the skills, abilities and duties of company employees, wage information, succession plans and affirmative action plans.
·         A general release of claims, including “any claim of unlawful discrimination of any kind.”
·         A covenant not to sue, in which the employee agrees not to initiate or file or cause to be initiated, any action, lawsuit, complaint or proceeding asserting any of the released claims against any of the released parties.”
The EEOC states that Section 707 of Title VII permits the agency to seek immediate relief without the same pre-suit administrative process that is required under Section 706 of Title VII, and does not require that the agency's suit arise from a discrimination charge.  CVS has moved to dismiss the case on the basis that the agreements expressly allow for employees to participate with and cooperate in any investigation by a government agency, including the EEOC. 
What is puzzling and disturbing about the EEOC attacking the CVS agreements is that they specifically include language that would seem to clearly address the EEOC’s stated concern.  Specifically, CVS’s agreements expressly note that none of the provisions are:
 “[I]ntended to or shall interfere with employee’s right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws, nor shall this Agreement prohibit employee from cooperating with any such agency in its investigation,” provided of course that the employee waives her entitlement to monetary and other relief.
            The EEOC filed the second lawsuit on April 30, 2014 against CollegeAmerica Denver, Inc. in the United States District Court of Colorado.[5]  According to the EEOC's lawsuit, Debbi D. Potts, the campus director of CollegeAmerica's Cheyenne, Wyoming campus, resigned in July 2012 and signed a separation agreement in September 2012 that conditioned the receipt of separation benefits on, among other things, her promise not to file any complaint or grievance with any government agency or to disparage CollegeAmerica. 
The EEOC claims these provisions would prevent Potts from reporting any alleged employment discrimination to the EEOC or filing a discrimination charge.  The EEOC further claims that seven days after CollegeAmerica learned that Potts filed a charge against CollegeAmerica charging age discrimination and retaliation, the school sued Potts in Colorado state court for violating the severance agreement. The EEOC asserts that the state court lawsuit was filed in retaliation for Potts filing her charge.  The EEOC also claims that provisions which chill employees' rights to file charges and cooperate with the EEOC exist in CollegeAmerica's form separation and release agreements.
            The EEOC’s actions should be troubling for employers, because the language in the agreements at issue in these lawsuits is fairly standard, and likely is being used by many companies.  In light of the EEOC’s focus on the issue, employers should have any such form agreements reviewed by legal counsel.  Some legal commentators have suggested that the EEOC may be using litigation to impose new guidelines for such agreements, or perhaps as a prelude to more formalized regulation.
C.        EEOC Conciliation that’s Not Very Conciliatory
            “Conciliation” is just a fancy word for trying to reach a settlement before an EEOC Investigation and determination evolves into an actual lawsuit brought by the agency.  It's an option many employers want to at least explore before having to engage in the costly defense of a discrimination suit brought by the EEOC.  The requirement that the EEOC engage in good faith conciliation is not discretionary, and is expressly required under Title VII.
            When the EEOC makes a “reasonable cause” determination in the course of investigating a charge of discrimination, it triggers a mandatory responsibility under 42 U.S.C. § 2000e-5(f)(1) to engage in good faith conciliation efforts before filing a lawsuit. This responsibility is not supposed to be a mere formality that is satisfied by merely making a few telephone calls and then checking a box on an agency form.  Conciliation, after all, serves important public interests by, among other things, guaranteeing administrative due process to the accused, protecting the public from unwarranted litigation expense, and conserving scarce administrative and judicial resources. It is for these reasons that federal courts uniformly recognize that the responsibility of good faith conciliation is so important that honoring it is a condition precedent to the EEOC filing a lawsuit.  
To satisfy the statutory requirement of good faith conciliation, the EEOC must: (1) outline to the employer the reasonable cause for its belief that the law has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. If a court finds that the EEOC terminated conciliation prematurely or failed to conciliate in good faith, it may stay the action and compel the EEOC to conciliate or dismiss the lawsuit. 42 U.S.C. § 2000e-5(f)(1) (1976) (the court may “in its discretion stay further proceedings for not more than sixty days pending further efforts of the Commission to obtain voluntary compliance”).[6]
            Asserting bad faith conciliation can be an important defense available to employers in federal court.  So what are some hallmarks of “bad faith” conciliation? Denying an employer’s reasonable request for a face-to-face meeting is a common and compelling factor in finding that the EEOC has failed to conciliate in good faith.[7]
Another very common tactic found by the courts to be unreasonable and in bad faith is if the EEOC takes an “all-or-nothing” approach to settlement. As noted by the United States Court of Appeals for the Fifth Circuit, “[t]he EEOC's take-it-or-leave-it demand for more than $150,000 represents the coercive, ‘all-or-nothing approach’ previously condemned by this court…”[8]  Lastly, federal courts have held that the EEOC’s failure to explain its monetary demands is not reasonable and does not allow a defendant to properly respond.[9]
On June 30, 2014, the U.S. Supreme Court announced that it had agreed to hear a case to decide whether federal courts can review the conciliation efforts of the EEOC. The EEOC takes the position that conciliation efforts are not reviewable by federal courts. The agency  recently scored a significant victory court victory as to that position, and that is the case that will be reviewed by the Supreme Court.[10]  In EEOC v. Mach Mining, LLC, the United States Court of Appeals for the Seventh Circuit ruled that an alleged failure by the EEOC to conciliate is not an affirmative defense to the merits of a discrimination suit.  The Seventh Circuit further noted that “conciliation is an informal process entrusted solely to the EEOC’s expert judgment and that the process is to remain confidential” and “[a] court reviewing whether the agency negotiated in good faith would almost inevitably find itself engaged in a prohibited inquiry into the substantive reasonableness of particular offers – not to mention using confidential and inadmissible materials as evidence – unless its review were so cursory as to be meaningless.” 
Mach Mining has petitioned for review by the United States Supreme Court because the Seventh Circuit’s decision conflicts with the rulings in other circuits, and the EEOC also asked   the Supreme Court to review the ruling so as to definitively determine if the EEOC’s pre-litigation conciliation efforts are subject to federal court review.  The Supreme Court will hear the case in its 2014-15 term, which begins in October.
D.        “You’ve Got Mail!” and Other Bad Behavior
            With the EEOC’s  new focus on large-scale, high-impact and high-profile investigations and lawsuits, it has come under fire and paid the price for heavy-handed litigation tactics and a “sue first, ask questions later” attitude.  In a recent sexual harassment lawsuit brought by the agency against an Iowa trucking company, the EEOC was ordered to pay the nearly $4.7 Million dollars in attorneys’ fees and expenses incurred by the employer in defending the case.[11]  The  District Court for the Northern District of Iowa ordered the sanctions against the EEOC for bringing a pattern-or-practice claim and 153 individual claims that were “frivolous, unreasonable or groundless.”
In a recent reversal of roles, the EEOC’s aggressive tactics have resulted in the agency being sued by an aggrieved employer in a lawsuit filed in the U.S. District Court for the District of Columbia.[12]
The lawsuit alleges the EEOC unconstitutionally solicited or “trolled” the company’s employees to become class members in a potential age discrimination class action. The suit claims the EEOC violated the law by sending a mass e-mail, utilizing the company’s business e-mail domains, to over 1300 management and non-management employees, requesting the employees complete a survey and supply evidence of discrimination against the employer.
For employers more familiar with the typical EEOC procedures associated with a Charge of Discrimination, the mass e-mailing and request for information, without any notice to the company, raises some serious red flags.
The facts of the case are as follows. In March 2011, the EEOC notified CNH America, LLC (“CNH”) that it was launching a nation-wide review of the company for alleged violations of the Age Discrimination in Employment Act.  The company employs approximately 10,000 people in the United States. The EEOC made a sweeping request for information and documents.
According to the lawsuit, in January 2012, the company produced to the EEOC 300 documents totaling 5,707 pages and over 600,000 electronic records from CNH databases, totaling 66,630 pages of documents. After complying with the agency’s request, the company received no communications of any sort from the EEOC until June 5, 2013, eighteen months later.
At 8:00 a.m. on June 5, 2013, the EEOC conducted a mass e-mailing to the business e-mail addresses of 1330 CNH employees across the United States and Canada. Over 200 of the recipients were members of management. The e-mail stated the EEOC was conducting “a federal investigation” and making “an official inquiry” into allegations that CNH discriminated against job applicants and employees, and contained a link to an on-line series of questions. It also asked for the employee’s birth date, address and telephone number. The EEOC’s on-line survey instructed CNH employees to “Please complete and submit this electronic questionnaire as soon as possible.”
The e-mail had been sent without any advance notice to CNH and according to the lawsuit, the mass mailing disrupted CNH’s business operations at the start of the work day and communicated to employees they should cease their legitimate work duties and instead immediately respond to the agency’s questions. A significant concern was the company’s belief that the EEOC had deliberately cut the employer out of the investigatory process, and had solicited members of management, whose statements arguably could have bound the company.
CNH filed its lawsuit on August 1, 2013, alleging that the EEOC’s mass e-mailing: (1) was not authorized by any EEOC rule or regulation, (2) violated the federal Administrative Procedure Act, (3) constituted an unreasonable search and seizure in violation of the Fourth Amendment, (4) violated the takings clause of the Fifth Amendment, and (5) violated the EEOC’s own compliance manual, which requires that an employer be allowed to have a spokesman or attorney present during an interview of management employees, and that advance notice be given. The suit claims the EEOC engages in bullying tactics to force companies into monetary settlements of questionable claims.
The lawsuit seeks a permanent injunction prohibiting the EEOC from soliciting CNH employees by e-mail, and additional injunctive relief to prevent the EEOC from utilizing any of the information obtained through the mass e-mailing. The lawsuit claims:
"The EEOC has never, before June 5, 2013, sent out emails through business email servers, without any prior notice to the respondent employer, in an attempt to unearth plaintiffs against the employer"
            Whatever the outcome of the lawsuit, this extremely aggressive approach by the EEOC should concern employers because it seems to be a deliberate effort to cut employers and their legal counsel out of the investigatory process.  The EEOC has always had the investigatory right to interview non-management employees without an employer representative or attorney present. However, because a statement by a member of management could be considered a binding admission on the part of the company, an employer is entitled to have legal counsel present for such interviews. It’s very easy to envisage a manager being cowed by a very official and intimidating e-mail into providing information, unbeknownst to the employer.
E.        Expansion of Employers’ Obligations to Accommodate Pregnant Employees
            Since the start of 2014, the EEOC has filed a string of lawsuits pursuant to the Pregnancy Discrimination Act of 1978 (“PDA”), with more lawsuits likely to follow.  The PDA prohibits employment discrimination on the basis of pregnancy, childbirth or related medical conditions, and requires employers to treat pregnant employees the same as any other similarly situated non-pregnant employee. The increased litigation should not come as a surprise, since in its Strategic Enforcement Plan, the EEOC announced it would prioritize issues relating to pregnancy-related limitations and the need for accommodations.
On July 14, 2014, the agency issued new enforcement guidelines on pregnancy discrimination.  This is the first comprehensive guidance issued by the EEOC since 1983, and in addition to addressing employers’ obligations under the PDA, it also discusses the application of the Americans with Disabilities Act (“ADA”) to pregnant employees and under what circumstances an employer must provide the reasonable accommodation required under the ADA.  Unlike the ADA,  the PDA itself does not impose a reasonable accommodation requirement on employers
Although pregnancy itself is not a disability, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. Amendments to the ADA made in 2008 make it much easier than it used to be to show that an impairment is a disability. A number of pregnancy-related impairments are likely to be disabilities, even though they are temporary, such as pregnancy-related carpal tunnel syndrome, gestational diabetes, pregnancy-related sciatica, back pain, preeclampsia and post-partum depression.
An employer may not discriminate against an individual whose pregnancy-related impairment is a disability under the ADA and must provide an individual with a reasonable accommodation if needed because of a pregnancy-related disability, unless the accommodation would result in undue hardship, meaning significant difficulty or expense.
According to the EEOC guidelines, examples of reasonable accommodations that may be necessary for a pregnancy-related disability include:
·         Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
·         Modifying workplace policies by allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though the employer generally prohibits employees from keeping drinks at their workstations;
·         Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
·         Allowing a pregnant worker placed on bed rest to telework where feasible;
·         Granting leave in addition to what an employer would normally provide under a sick leave policy;
·         Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
·         Temporarily reassigning an employee to a light duty position.
However, there is a sense among some legal commentators that the EEOC unwisely jumped the gun with the release of the guidelines, because less than two weeks earlier, the United States Supreme had announced it was going to review a case involving the very same issues.  There is the possibility that the guidelines the EEOC is offering to employers now, could end up in conflict with the decision ultimately handed down by the Court.
On July 1, 2014, the Court agreed to decide whether the PDA requires an employer who provides workplace accommodations to non-pregnant employees with physical limitations to also offer the same accommodations to pregnant employees who were similar in their ability or inability to work.  The case being appealed is Young v. United Parcel Service,[13] in which a pregnant driver for the company, whose job involved loading and delivering packages, claimed her rights under the PDA were violated when she was denied alternative work assignments during her pregnancy.  Under a collective bargaining agreement, the company provided such alternative work assignments to employees who were unable to perform their regular duties because of an on-the-job injury, or because of a condition or impairment that qualified as a disability under the ADA.  The district court granted summary judgment in favor of the company on the basis that Young could not show evidence of discrimination or that the policy was a pretext for discrimination.  The United States Court of Appeals for the Fourth Circuit affirmed the decision.  The Supreme Court will hear the case during its 2014-2015 term.
            In light of the release of the EEOC guidelines and in anticipation of the ruling by the Supreme Court, it would be a prudent practice for employers to carefully review and consider any reasonable accommodation requests related to pregnancy or pregnancy related conditions.
F.         EEOC Issues Guidelines for Accommodating Religious Dress and Grooming in the Workplace
            On March 6, 2014, the EEOC issued two new technical assistance publications addressing workplace rights and responsibilities with respect to religious dress and grooming under Title VII of the Civil Rights Act of 1964.  The question-and-answer guide, entitled "Religious Garb and Grooming in the Workplace: Rights and Responsibilities," and an accompanying fact sheet, is intended to offer practical advice for employers and employees, and presents numerous case examples based on the EEOC's litigation.
Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or an Orthodox Jewish woman's practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).
Employers covered by Title VII must accommodate exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer's business. When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons. Topics covered in the publications include:
·         Prohibitions on job segregation, such as assigning an employee to a non-customer service position because of his or her religious garb;
·         Accommodating religious grooming or garb practices while ensuring employer workplace needs;
·         Avoiding workplace harassment based on religion, which may occur when an employee is required or coerced to forgo religious dress or grooming practices as a condition of employment; and
·         Ensuring there is no retaliation against employees who request religious accommodation.
What are the major points that employers should note from the EEOC’s most recent take on religious discrimination?  They are as follows:
·         An employer cannot justify a refusal to accommodate based on its belief that the employee’s religious beliefs are not “sincere.”
·         Employer must show actual “undue hardship” and not speculative hardship.
·         Customer complaints or preference is not a defense for failure to accommodate.
There has been a steady rise over the past few years in the number of religious discrimination charges filed with the EEOC, and the agency has brought more religious discrimination lawsuits.
IV.  Conclusion
            By advertising its agenda through its Strategic Enforcement Plan, the EEOC has let employers know what they can expect over the next two years.  With that knowledge, employers can update their policies, procedures and training to avoid liability.


[1] EEOC v. Freeman, Civil Action No. 09-cv-2573 (D. Md. Aug. 9, 2013).
[2] Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation, 2014 WL 1378197 (6th
Cir. 2014).
[3] Texas v. EEOC, Civil Action No. 5:2013-cv-00255 (N. D. Texas Nov. 4, 2013).
[4] EEOC v. CVS Pharmacy, Inc., Civil Action No. 1:14-cv-00863 (N.D. Ill. Feb. 7, 2014).
[5] EEOC v. CollegeAmerica Denver, Inc., n/k/a Center For Excellence in Higher Education, Inc., d/b/a
CollegeAmerica, Civil Action No. 14-cv-01232 (D. Colo. April 30, 2014).
[6] See also EEOC v. Agro Dist., LLC, 555 F.3d 462, 469 (5th Cir. 2009) (“Courts remain free to impose a stay for the
EEOC to continue prematurely terminated negotiations, and where the EEOC fails to act in good faith, dismissal
remains an appropriate sanction.”). “
 
[7] See, e.g., EEOC v. Agro Dist., LLC, 555 F.3d 462, 469 (5th Cir. 2009); EEOC v. Pacific Maritime Assoc., 188
F.R.D. 379, 380-381 (D. Or. 1999).
[8] See, e.g., Agro, 555 F.3d at 468); EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) (“As
we have said before, such an ‘all or nothing’ approach on the part of a government agency, one of whose most
essential functions is to attempt conciliation with the private party, will not do”).
[9] See, e.g., EEOC v. Golden Lender Fin. Group, No. 99 CIV. 8591 (JGK), 2000 WL 381426, at *5 (S.D. N.Y. Apr.
13, 2000) (holding that the EEOC did not meet its statutory obligation to conciliate when it ended conciliation after
the charged party sought additional information regarding the requested damages of certain alleged victims); EEOC
v. Pac. Mar. Ass’n, 188 F.R.D. 379, 381 (D. Or. 1999) (ordering a stay for further conciliation where “meaningful
conciliation efforts were thwarted” during conciliation after “[c]ounsel for [defendant] reasonably requested that the
EEOC investigator explain his calculation of the monetary settlement offered”).
[10] EEOC v. Mach Mining, LLC, 718 F.3d 171, 121 FEP Cases 327 (7th Cir. 2013).
[11] EEOC v. CRST Van Expedited, Inc., Civil Action No 07-cv-95.
[12] Case New Holland, Inc. and CNH America LLC v. EEOC et al., Civil Action No. 1:13-cv-1176 (D.C. Aug. 1,
2013).
[13] Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2013).