United States Equal Employment Opportunity Commission

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1 United States Equal Employment Opportunity Commission OVERVIEW OF THE EEOC LAWS EEOC UPDATES & TRENDS S E P T E M B E R G L O R Y G E R V A C I O S A U R E L O C A L O F F I C E D I R E C T O R, H O N O L U L U L O C A L O F F I C E

2 OUR VISION A Strong and Prosperous Nation Secured Through a Fair and Inclusive Workplace O U R M I S S I O N We Promote Equality of Opportunity in the Workplace and Enforce Federal L aws Prohibiting Employment Discrimination

3 TRAINING OBJECTIVES Learn about the laws enforced by EEOC Gain a deeper understanding of the theories of discrimination Recent EEOC updates including new developments involving sex discrimination and arrest & conviction records

4 EEOC is an independent regulatory commission Enforces federal anti-discrimination laws (employment only) Headquartered in Washington, D.C. Divided into 15 Districts, with 53 field offices *Los Angeles District includes Southern & Central California, Southern Nevada, Hawaii, & U.S. territories of American Samoa, Guam, N. Mariana Islands and Wake Island)

5 COMMISSION CHAIR Jenny Yang Commissioner Commissioner Commissioner Commissioner Charlotte Burrows Constance Barker Victoria Lipnic Chai Feldblum General Counsel P. David Lopez

6 EEOC Trends

7 National EEOC Charge Receipts 105, ,000 95,000 90,000 85,000 80,000 75,000 70,000 65,000 FY2003 FY2004 FY2005 FY2006 FY2007 FY2008 FY2009 FY2010 FY2011 FY2012 FY 2013 FY 2014

8 CNMI EEOC Charge Receipts FY 2012 FY 2013 FY 2014

9 National EEOC Charge Receipts by Type FY % 40% 35% 30% 25% 20% 15% 10% 5% 0% Retaliation Race Sex Disability Age National Origin Religion GINA

10 CNMI EEOC Charge Receipts by Type FY % 45.0% 40.0% 35.0% 30.0% 25.0% 20.0% 15.0% 10.0% 5.0% 0.0%

11 Laws Enforced by EEOC Title VII of the Civil Rights Act of 1964 (Title VII) Equal Pay Act of 1963 (EPA) Age Discrimination in Employment Act of 1967 Rehabilitation Act of 1973 Title I of the Civil Rights Act of 1991 Americans with Disabilities Act of 1990 (ADA) ADA Amendments Act of 2008 Genetic Information Non-Discrimination Act of 2008 (GINA)

12 8 Protected Categories race color national origin religion sex disability age (>40) genetic information and retaliation

13 Who is protected by the laws enforced by EEOC? employee temporary worker job applicant former employee (including undocumented workers) ** Independent contractors are not covered.

14 Who can file an EEOC charge? Individuals Individuals or organizations on behalf of others (third party charges) EEOC District Director (ADEA or EPA Directed Charge) EEOC Commissioner's Charge (systemic)

15 An EEOC Charge May Be Filed Against: EMPLOYERS - both private & public sector EMPLOYMENT AGENCIES Classification or referral of individuals for employment Joint employer issues LABOR ORGANIZATIONS (i.e., unions) Limiting, segregating or classifying membership Referral of individuals for membership Referral of individuals for employment

16 EEOC PROCESS Other Jurisdictional Concerns An EEOC charge must be filed within 300 days of the last discriminatory act Equal Pay Act (EPA) complainants may file directly in court within 2 years of the last discriminatory act (3 years if willful) Employer must have at least 15 employees for most statutes (20 for age discrimination; 1 for EPA)

17 FREE neutral EEOC s Process Take complaint Investigate Mediate Make finding Violation Conciliate Insufficient Evidence Insufficient Evidence Private Suit Private Suit Litigate or RTS

18 What Remedies Are Available When Discrimination is Found? Back pay and or front pay Hiring Promotion Reinstatement Reasonable accommodation Other actions that will place the individual in the position they would be in had no discrimination occurred. Attorney s fees Expert witness fees Court costs

19 Remedies continued The monetary cap (per person) for damages in federal court depends on the size of the employer: employees: $50, employees: $100, employees: $200,000 Over 500 employees: $300,000

20 Hiring Potential Employment Discrimination Issues Firing, layoff, or not recalled to work Your Pay (wages, salary, compensation) Assignment or classification Transfer Promotion denied Job testing or policy is unfair Recruitment and job ads Reasonable or religious accommodation Use of company facilities (segregation)

21 Training and apprenticeship programs Benefits (fringe, retirement) Disability leave Other terms, conditions and privileges of employment No hire or mistreatment because of your association with someone from a certain race, religion, national origin, disabled, etc. No hire or mistreatment because of stereotypes or assumptions of your protected category Harassment (all protected categories)

22 Discrimination Discrimination is behavior that treats people unequally because of their group memberships. Discriminatory behavior, ranging from slights to hate crimes, often begins with negative stereotypes and prejudices.

23 The Theories of Discrimination Disparate Treatment Disparate Impact Harassment Religious Reasonable Accommodation Disability Reasonable Accommodation Retaliation

24 DISPARATE TREATMENT Employers prohibited from disparate treatment (treating one group less favorably) based on a protected basis Disparate treatment is a violation whether motivated by bias against or preference toward an applicant or employee due to their protected group

25 Elements of Proof: Disparate Treatment Charging Party is a member of a protected group. Charging Party was harmed (i.e. discipline, discharge, lay off, terms and conditions). Others not of Charging Party's class were not treated the same although they were similarly situated.

26 DISPARATE IMPACT The EEO laws also prohibit employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not job-related and consistent with business necessity. This is called disparate impact discrimination.

27 Disparate Impact Theory aimed at practices fair in form, but discriminatory in operation in that they operate as built-in headwinds [for a protected class] and are unrelated to measuring job capability. Griggs v. Duke Power Co., 401 U.S. 424, (1971). Three analytical steps: Does policy or practice have significant disparate impact? If so, has the employer proven that the policy or practice is job related and consistent with business necessity? Is there a less discriminatory alternative that meets the business need?

28 All Harassment in the Workplace should cease IMMEDIATELY

29 BEHAVIORS THAT CAN BE CONSIDERED HARASSMENT Unwelcome teasing, jokes, remarks, that are sexual, derogatory based on a protected bases, or ethnic slurs. Unwelcome letters, telephone calls, s or distribution of materials that are sexual or derogatory based on a protected bases. Physical assaults based on a protected bases. Demands for sexual favors for job benefits. Unwelcome and deliberate touching. Unwelcome sexually suggestive looks/gestures. Unwelcome pressure for sexual favors or dates. Favorable treatment for sexual favors.

30 DETERMINE IF UNWELCOME Harassment is unlawful only if it is unwelcome. Unwelcome- Employee did not solicit or incite it and Employee regarded the conduct as undesirable or offensive.

31 DETERMINING WHETHER BEHAVIOR IS HARASSMENT UNDER THE LAW Use reasonable person standard Primary criteria Context Severity Frequency Isolated comments rarely create a hostile environment A single incident of physical sexual conduct can create a hostile environment

32 CO-WORKER/NON-EMPLOYEE HARASSMENT Liability is not automatic. Must establish the employer knew or should have known about the harassing conduct Employer must then show it took immediate and appropriate corrective action to correct harassment and prevent its recurrence

33 WAS HARASSMENT BY AN ALTER EGO OF THE EMPLOYER? Liability is automatic Alter ego-someone of sufficiently high rank to be treated as the employer s proxy. Examples-president, owner, partner, corporate officer.

34 HARASSMENT BY A SUPERVISOR Liability may or may not be automatic Types of supervisory harassment Tangible employment action harassment Automatic liability Hostile environment harassment Liability not automatic Recourse to the affirmative defense

35 IS IT HOSTILE ENVIRONMENT HARASSMENT BY SUPERVISOR? The affirmative defense is available to the employer to avoid liability The employer has the burden and must prove both prongs of the affirmative defense First prong: did the employer exercise reasonable care to prevent and correct the harassment? Second prong: did the employee unreasonably fail to utilize the employer s complaint procedure or to avoid all harm otherwise?

36 ELEMENTS OF PROOF: RELIGIOUS ACCOMMODATION Did Charging Party request an accommodation for sincerely held religious belief or practice? Did management deny the request? If so, could respondent have provided a reasonable accommodation without undue hardship?

37 ELEMENTS OF PROOF: DISABILITY ACCOMMODATION Is Charging Party a qualified individual with a disability? Can Charging Party perform the essential functions of their position with or without a reasonable accommodation? Did Charging Party request an accommodation? Did the employer engage in the interactive process? Did Management deny the request? If so, could Management have provided a reasonable accommodation without undue hardship?

38 RETALIATION OPPOSITION to discrimination or PARTICIPATION in covered proceedings ADVERSE ACTION CAUSAL CONNECTION between the opposition or participation and the adverse action

39 ELEMENTS OF PROOF: RETALIATION 1. CP opposed unlawful employment practice, or participated in the EEO process. 2. R knew of CP s opposition or participation. 3. R subjected CP to adverse treatment. 4. There was a causal connection between CP s protected activity and the adverse action. Applies to claims under all statutes: Title VII, ADEA, ADA, EPA, and GINA

40 What is a Protected Activity? Opposing an unlawful practice Opposition does not have to be formal Practice does not have to be actually unlawful Reasonable belief in unlawfulness Requesting a disability accommodation or otherwise exercising rights under the ADA Bringing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding or hearing

41 EVIDENCE OF CAUSAL CONNECTION Immediacy of retaliation. Contrast in treatment before and after opposition or participation. Disparate treatment of similarly situated persons not engaged in protected activity. Direct evidence of retaliatory motive.

42 COMMISSION FOCUS July 2015: Commission issues decision stating that discrimination based on SEXUAL ORIENTATION is recognized under Title VII. 2012: Commission issued decision stating that discrimination based on TRANSGENDER STATUS (as GENDER IDENTITY) is recognized under Title VII.

43 COMMISSION FOCUS June 25, 2015: EEOC issues updated enforcement guidance on PREGNANCY DISCRIMINATION.

44 COMMISSION FOCUS June 1, 2015: U.S. Supreme Court rules in EEOC s favor on case relating to RELIGIOUS GARB & GROOMING in the workplace.

45 COMMISSION FOCUS April 15, 2015: The Commission meets on EMPLOYER WELLNESS PROGRAMS amid concerns that such programs need EEOC guidance to avoid discrimination.

46 COMMISSION FOCUS April 15, 2015: The Commission meets to discuss RACIAL & ETHNIC DISCRIMINATION in the 21 st century workplace.

47 COMMISSION FOCUS January 14, 2015: The Commission meets to discuss why WORKPLACE HARASSMENT is still a major problem 30% of all charges received by EEOC and how to address it.

48 COMMISSION FOCUS March 12, 2014: The Commission met on the use of SOCIAL MEDIA by employers, applicants & employees and its impact on the enforcement of anti-discrimination laws.

49 COMMISSION FOCUS November 13, 2013: Commission meeting highlights challenges to NATIONAL ORIGIN ENFORCEMENT.

50 COMMISSION FOCUS April 25, 2012: Commission met & approved GUIDANCE on the use of ARREST & CONVICTION RECORDS to modernize old guidance

51 2012 EEOC GUIDANCE Arrest & Conviction Records 3 KEY FACTORS TO CONSIDER: 1. Nature & gravity of the offense 2. Time that has passed since then 3. Nature of the job being held or sought

52 STRATEGIC PLAN FY12-16 approved in 2012 Mission: To Stop & Remedy Unlawful Employment Discrimination 3 Strategic Objectives: 1. Strategic Law Enforcement 2. Education & Outreach 3. Efficiently Serve the Public Performance Measures to measure progress in a time of static resources & growing need for services.

53 Guiding Principles Strategic Enforcement Plan A targeted approach An integrated approach Accountability While continuing commitment & enhancing: The Priority Charge Handling Process (PCHP) Systemic Task Force Recommendations of 2006 SEP to replace the prior National Enforcement Plan & reaffirm Comprehensive Enforcement Program

54 The Strategic Enforcement Plan (SEP) PRIORITIES Eliminating barriers in recruitment & hiring Protecting immigrant, migrant & vulnerable workers Addressing emerging & developing employment discrimination issues Enforcing equal pay laws Preserving access to the legal system Preventing harassment through systemic enforcement & targeted outreach

55 SEP Red Flags Eliminating Barriers in Recruitment & Hiring Class-based intentional recruitment & hiring discrimination with facially neutral practices that adversely impact particular groups: May include racial, ethnic and religious groups, older workers, women, people with disabilities Exclusionary policies and practices Channeling/steering into specific jobs Restrictive application processes Use of screening tools (pre-employment tests, background checks, date-of-birth inquiries)

56 SEP Red Flags Protecting immigrant, migrant & vulnerable workers Targets discriminatory practices that affect these workers who are often unaware of their rights under EEO laws or reluctant to exercise them Disparate pay Job segregation Harassment Trafficking

57 SEP Red Flags Addressing Emerging and Developing Issues Demographic changes (e.g., aging workforce) Recently enacted legislation Judicial & administrative interpretations & theories Significant events (e.g., 9/11 attacks) ADA issues: coverage, reasonable accommodation, qualification standards, undue hardship, leave policies Accommodating pregnancy-related limitations under ADA & the Pregnancy Discrimination Act (i.e., leave) Coverage of lesbian, gay, bisexual & transgender individuals under Title VII (sex discrimination)

58 SEP Red Flags Enforcing Equal Pay Laws Target compensation systems and practices based on gender Encourages the use of directed investigations and Commissioner charges to facilitate enforcement

59 SEP Red Flags Preserving Access to the Legal System Targets practices that discourage or prohibit individuals from exercising their rights, or which impede the EEOC's investigative/enforcement efforts, such as: Retaliatory actions Overly broad waivers Settlement provisions that prohibit filing future EEOC charges or providing information to assist in the investigation or prosecution of unlawful discrimination claims.

60 SEP Red Flags Preventing Harassment Through Systemic Enforcement & Targeted Outreach Harassment is of the most frequent complaints raised in the workplace Harassment claims based on race, ethnicity, religion, age, and disability combined outnumber sexual harassment claims in the private & public sectors Aims to target on systemic harassment issues involving a class of affected individuals Calls for an outreach campaign to educate employers & employees to deter future violations

61 BEST PRACTICES FOR EMPLOYERS Implement a strong EEO policy that is embraced at the top levels of the organization. Train managers, supervisors and employees on its contents, enforce it, and hold them accountable. Promote an inclusive culture in the workplace by fostering an environment of professionalism and respect for personal differences. Foster open communication and early dispute resolution.

62 BEST PRACTICES FOR EMPLOYERS Establish neutral and objective criteria to avoid subjective employment decisions based on personal stereotypes or hidden biases. Review leave policies for compliance with ADA & Title VII e.g., pregnancy leave, return-to-work and 100% heal policies Review criminal conviction & credit check policies for compliance with Title VII.

63 BEST PRACTICES FOR EMPLOYERS Recruit, hire, and promote with EEO principles in mind, by implementing practices designed to widen & diversify the pool of candidates considered for employment. Monitor for EEO compliance by conducting selfanalyses to determine whether current employment practices disadvantage particular groups of people or treat them differently. Provide clear assurance that employees who make complaints or provide information related to complaints will be protected against retaliation

64 Questions?

65 Contact Information & Resources U.S. Equal Employment Opportunity Commission Toll-free: TTY: Glory Gervacio Saure Director Honolulu Local Office glory.gervacio@eeoc.gov

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