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,
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.
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. 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.
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. 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”).
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.
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…” 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.
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. 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. 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.
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, 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.
