9:45 10:35 am EEOC Update Jennifer L. Schancupp

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1 9:45 10:35 am EEOC Update Jennifer L. Schancupp Of Counsel, Stamford Office Jackson Lewis P.C. EEOC Enforcement Title VII (1964) Age Discrimination in Employment Act (1967) Equal. Pay Act (1963) Section 501 of the Rehabilitation Act (1973) Americans with Disabilities Act (1990) Genetic Information Nondiscrimination Act (2008) Congress granted EEOC power to prevent any person from engaging in any unlawful employment practice. 2 1

2 Strategic Enforcement Plan FY Approved December, 2012 Reaffirms that systemic enforcement must be strategic, nationwide, coordinated and adequately resourced. 3 SEP National Priorities Preventing Harassment Through Systemic Enforcement and Targeted Outreach; Eliminating Barriers in Recruitment and Hiring; Enforcing Equal Pay Laws; Protecting Immigrant, Migrant and Other Vulnerable Workers; Addressing Emerging and Developing Issues; Preserving Access to the Legal System. 4 2

3 SEP National Priorities Meritorious systemic charges and cases that raise SEP or district priority charges should be given precedence over individual priority matters and over all non-priority matters, whether individual or systemic. 5 Potential Pitfalls in Responding to Complaints Beware of aggressive requests for documents and interviews Pattern and practice investigations make information relevant beyond that which is related to the claimant Me too evidence 6 3

4 Recruitment & Hiring: Background Checks EEOC s updated guidance on Criminal Background Checks issued in April, % of employers use criminal background checks According to EEOC guidance: In the last twenty years, there has been a significant increase in the number of Americans who have had contact with the criminal justice system and, concomitantly, a major increase in the number of people with criminal records in the working-age population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men. 7 Disparate Impact Analysis Plaintiff or EEOC: Must demonstrate that a facially neutral policy has a statistically significant disparate impact on a protected group. Technology has changed everything and the EEOC knows it. 8 4

5 Establishing Business Necessity Burden shifts to employer to show the policy is job related and consistent with business necessity. Employer must show that it considered three factors in making its decision: 1. The nature and gravity of the criminal offense(s); 2. The time that has passed since the conviction and/or completion of the sentence; and 3. The nature of the job held or sought. Targeted screen should be narrowly tailored. Best Practice: Targeted screen followed by an individualized assessment. Consider the totality of the circumstances of the conviction and the position. 9 Who Should Be Concerned? Employers should be concerned if they use criminal background checks and: Use them on a regular basis ( big numbers are bad numbers ). Solicit and maintain race, gender, age, disability or veteran data on applicants this applies to government contractors and subcontractors in particular. Applicant and/or background check data is maintained by the company or through a vendor. Have a one size fits all criminal background check policy. 10 5

6 Be in a Position to Demonstrate Compliance Targeted Screens: Use different standards for different positions. Avoid policies that indicate automatic exclusions. Instead, Acme Corp. believes the following crimes are job related applicants with these offenses will be subject to individualized assessment. Train HR and decision makers to avoid reliance on hard and fast rules such reliance jeopardizes ability to demonstrate use of individualized assessment. 11 Recent Cases Freeman (4 th Circuit, 2015) Peoplemark (6 th Circuit, 2013) Dolgen Corp LLC d/b/a Dollar General (pending in ND Ill) EEOC Press Releases: [Manufacturer] to Pay $1.6 Million and Offer Jobs to Settle Federal Race Discrimination Lawsuit [Consumer Products Company] to Pay $3.13 Million and Made and Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans In both cases, the EEOC charged that the companies criminal background check policy disproportionately excluded African American applicants from permanent employment. 12 6

7 Don t Forget About the Fair Credit Reporting Act Written separate disclosure stating that a consumer report may be obtained for employment purposes. Written authorization. Pre-adverse action notice: summary of rights and copy of report. Adverse action notices. FCRA enforced by U.S. Federal Trade Commission February, 2014, EEOC and FTC co-authored two documents: Background Checks, What Employers Need to Know (EEOC guidance) and Background Checks: What Job Applicants and Employees Should Know (FTC guidance). 13 Background Checks and Credit Information Conn. Gen. Stat tt: Limits access to consumer credit reports and credit information in making employment decisions. Exceptions: Employer is a financial institution Credit report is required by law; Employer reasonably believes that employee has engaged in specific activity that constitutes a violation of the law related to employee s employment; Report is substantially related to the employee s current or potential job; or Employer has a bona fide purpose for requesting or using information in the credit report that is substantially job-related and is disclosed in writing to the employee or applicant. 14 7

8 Pregnancy Discrimination Guidance Originally released: July 14, 2014 March 25, 2015: Young v. UPS decided by U.S. Supreme Court June 25, 2015: EEOC revises its Enforcement Guidance in accordance with Young v. UPS decision 15 Pregnancy Discrimination Act An employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. EEOC says these clauses must be read independently. 16 8

9 Protected Classes Under PDA (per EEOC) Current pregnancy. Past pregnancy. Potential or intended pregnancy: Reproductive risk; Intention to become pregnant; Infertility treatment; Use of contraception. Medical condition related to pregnancy or childbirth: Lactation and breastfeeding; Abortion. 17 Examples of Disparate Treatment Violations of the PDA Making an employment decision based on assumptions or stereotypes regarding pregnant employee. Making an employment decision based on concerns regarding safety of unborn baby or future fertility (except where there is a BFOQ). Making an employment decision based on risk that employee will take leave earlier than planned. Making an employment decision because an employee announces she is or intends to become pregnant. Making an employment decision based on employee s decision to have or refrain from having an abortion. 18 9

10 Examples of Disparate Treatment Violations of the PDA Failing to provide nursing mothers the same freedom to address lactation-related needs (such as expressing breast milk) as co-workers with other similarly limiting medical conditions. Penalizing women for taking time off work for surgical impregnation (or other treatments that apply only to one gender). Allowing a hostile work environment based on pregnancy, childbirth, lactation, breastfeeding or related medical conditions. Compelling a pregnant employee to take leave. 19 Examples of Potential Disparate Impact Violations Maintaining a leave or attendance policy with caps on the amount of time an employee can take off work and/or length of service eligibility requirements where such caps and eligibility requirements would have a disparate impact on pregnant employees. Maintaining limits on light duty assignments if such restriction would impose a disparate impact on pregnant workers

11 Young v. UPS UPS required drivers to be able to lift parcels up to 70 lbs. and up to 150 lbs. with assistance. Young, a pregnant driver, was advised not to lift more than 20 lbs. during first 20 weeks of pregnancy and no more than 10 lbs. thereafter. Young claimed UPS acted unlawfully by not accommodating her lifting restrictions. Young claimed UPS accommodated other drivers who were similar in their inability to work. UPS claimed the other persons were 1) drivers who became disabled on the job; 2) drivers who had lost their DOT certifications; and 3) those who suffered from a disability under the ADA. 21 Young v. UPS Employee must first show: She belongs to the protected class (i.e., she is pregnant); She sought accommodation; The employer did not accommodate her; and The employer did accommodate others similar in their ability or inability to work. Employer then provides a legitimate, nondiscriminatory explanation for denying accommodation: That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ( similar in their ability or inability to work ) whom the employer accommodates. If genuine issues of material factual remain regarding pretext, submit to jury

12 Normal Pregnancy Still Not a Disability under the ADAAA But Impairments related to pregnancy may qualify as disabilities. Under the ADAAA, more conditions, even temporary conditions, are considered disabilities. The Guidance emphasizes that all types of impairments associated with pregnancy (even typical pregnancies) such as back pain, leg swelling, carpal tunnel, etc. may meet the relaxed disability definition under the ADAAA and, as a result, require reasonable accommodation. 23 EEOC s Examples of Reasonable Accommodations Modify work schedule or shift. Modify non-essential job duties. Modify attendance policy to allow for time off work. Provide opportunity to telecommute. Provide leave of absence on same terms and conditions as you would provide leave to disabled or injured workers. Hold open a job for a pregnancy-related absence for the same length of time that jobs are held open for employees on sick or temporary disability leave with same right to return to position held before the absence or leave

13 CFEPA & Pregnancy Leave Entitlement: Regardless of length of service, an employee is entitled to a reasonable leave of absence for the disability resulting from the pregnancy. Duty to Transfer: If the employer or pregnant employee reasonably believes that continued employment may cause injury to the employee or fetus, the employer must make a reasonable effort to transfer the pregnant employee to any suitable position. To be eligible for transfer, the employee must give written notice of pregnancy to employer. 25 Take-Aways for Employers Review your policies Light duty/ transitional work/ reasonable accommodation If policy provides for accommodations to categories of employees and pregnant workers not covered, consider extending to pregnant employees. If pregnancy not covered, make sure you have a legitimate, non-discriminatory reason for exclusion Train supervisors how to respond to recognize and respond to pregnant workers request for accommodation

14 Wellness Programs The issue: When do wellness program incentives render a program involuntary and, therefore, in violation of ADA? Notice of Proposed Rulemaking issued April 20, 2015: Voluntary means: (1) employee not required to participate; (2) employee may not be denied health coverage or disciplined/ retaliated against if refuses to participate Employer may offer limited incentives up to a maximum of 30 % of total cost of employee-only coverage; Employer to provide employee with notice describing what medical information will be collected, with whom it will be shared, how it will be used and means by which it will be kept confidential Medical information collected may be disclosed to employers only in aggregate form and must be kept confidential 27 Wellness Programs The issue: How can an employer-sponsored wellness program, which offers incentives for an employee s covered spouse to divulge personal health history, comply with GINA? Notice of Proposed Rulemaking issued October 30, 2015 GINA doesn t prohibit employers from offering incentives to employees for their spouses to complete health risk assessments as part of wellness program. Individual from whom genetic information being obtained must give prior, knowing, voluntary and written authorization

15 Title VII and LGBT Protections EEOC s SEP includes coverage of lesbian, gay, bisexual and transgender individuals under Title VII s sex discrimination provisions, as they may apply as a top EEOC enforcement priority. According to EEOC, although Title VII does not include sexual orientation or gender identity as a protected class, prohibition on sex discrimination encompasses sexual orientation and gender identity. Whether or not courts adopt this position remains to be seen. 29 CFEPA & LGBT Protections CFEPA prohibits employers from discrimination in hiring, benefits, compensation or other conditions or privileges of employment based on sexual orientation or gender identity or expression 30 15

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