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2012 EEOC TRENDS, PRIORITIES AND UPDATES Timothy A. Riera Honolulu Local Office Director U.S. Equal Employment Opportunity Commission.

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Presentation on theme: "2012 EEOC TRENDS, PRIORITIES AND UPDATES Timothy A. Riera Honolulu Local Office Director U.S. Equal Employment Opportunity Commission."— Presentation transcript:

1 2012 EEOC TRENDS, PRIORITIES AND UPDATES Timothy A. Riera Honolulu Local Office Director U.S. Equal Employment Opportunity Commission

2 Agenda Charge Receipts Trends and Priorities EEO Cases

3 General Counsel P. David Lopez THE COMMISSION CHAIR Jacqueline A. Berrien Commissioner Commissioner Commissioner Constance Barker Victoria Lipnic Chai Feldblum

4 EEOC Charge Receipts NATIONAL (FY 2000 – FY 2011)

5

6 NATIONAL STATISTICS FY 2011 EEOC received 99,947 private sector discrimination charges, the highest level ever received, and monetary relief obtained for victims totaled over $455.6 million ($51 million increase over FY2010.) For the second time since the EEOCs inception, retaliation (37%) exceeded race (35.4%) as the #1 complaint filing. Mediation 9,831 resolutions $170+million benefits 300 lawsuits = $91 Million in relief (23 systemic and 67 multiple victims)

7 EEOC Strategic Plan Strategic Law Enforcement Education and Outreach Efficiently Serving the Public

8 Systemic Program Systemic discrimination cases are pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location.

9 Priority for investigations and litigation Encourage employers to engage in proactive prevention EEOC expanded efforts to partner with advocacy groups, state and federal agencies, employer groups, the plaintiffs bar and other organizations to identify and address discriminatory practices. Systemic Program

10 OGC priority---partnerships among the district offices- Shift to more cases on behalf of larger groups Fewer small cases, strategically selected to have impact beyond the named individual More Commissioners Charges

11 Examples of Systemic Discrimination Racially discriminatory barriers in recruiting and hiring practices Exclusion of women from traditionally male dominated fields of work Barriers based on race, gender or national origin to higher level positions Disability discrimination issues, including unlawful pre- employment inquiries

12 Examples of Systemic Discrimination Age discrimination in reduction in force and retirement benefits Race and national origin discrimination in management trainee programs Compliance with customer preferences that result in discriminatory placements or assignments.

13 Cases Involving Leave Policies EEOC v. Supervalu Inc., N.D. Ill. 09-cv medical leave of absence EEOC v. Sears Roebuck, N.D. Ill. No. 04-cv workers compensation leave policy EEOC v. Verizon Comms., D. Md. No. 11-cv no fault leave policy

14 Arrest & Conviction Records EEOC updated guidance on 4/25/2012 on.cfm

15 Statistics on Criminal Records Whatever statistics you look at, you will find that Blacks and Hispanics are: arrested, convicted, and sent to prison at a significantly higher rate than Whites.

16 CONSEQUENTLY… …if an employer demands that all new hires beconviction free… …this policy or practice may have a DISPARATE IMPACT on both African Americans and Hispanics.

17 CRIMINAL BACKGROUND CHECKS CRIMINAL BACKGROUND CHECKS WHY DOES THE EEOC CARE? Discrimination based on RACE or NATIONAL ORIGIN Intentional Discrimination - Disparate Treatment Unintentional Discrimination – Disparate Impact

18 DISPARATE IMPACT DISPARATE IMPACT Criminal Background Screening Step 1: Did the policy disproportionately screen out applicants based on race, national origin or another protected factor? Step 2: Is the exclusion job-related and is there a business need related to the job in question?

19 CRIMINAL RECORDS Common Inaccuracies in CRIMINAL RECORDS Wrong Person Multiple Reports of the Same Incident Uncorrected Identity Theft Arrests Dropped For Innocence Expunged Records Still Appear

20 Conviction and Job? Is There a Link Between Conviction and Job? Basic question: Does a criminal record suggest an unacceptable risk? Factors to Assess Nature and Gravity of the Offense; How much time has passed? What type of job is involved?

21 Veterans with Disabilities EEOC updates publications on Employment of Veterans with Disabilities Guide for Employers – compares requirements under Americans with Disabilities Act (ADA) Uniformed Services Employment and Reemployment Rights Act (USERRA) Guide for Wounded Veterans EEOC public meeting Overcoming Barriers to the Employment of Veterans with Disabilities

22 Small Business EEOC Small Business Task Force Use new technology to expand outreach Develop targeted technical assistance and training Aid for small businesses owned by women and minorities Enhance small business resources at Focus: Newly-established Too small to afford lawyers or human resource personnel

23 WHITE HOUSE EQUAL PAY TASK FORCE President Obama pledged to crack down on violations of equal pay laws. White House Administration created the National Equal Pay Task Force to address the issue and promote work- family balance for families. The Task force calls for interagency coordination between EEOC, DOJ, DOL, and OPM Recommendations released in July 2010 to expand coordination, collect data, undertake a public education campaign, strategize on making the federal government a model employer.

24 TRI-AGENCY COLLABORATION Partnerships emphasized between: U.S. EEOC U.S. Department of Labors Office of Federal Contract Compliance Programs (OFCCP) U.S. Department of Justice, Civil Rights Division

25 Agency Interaction & Collaboration Memorandum of Understanding (MOU) DFEH OFCCP (updated ) Partnerships for outreach and education Employer Groups Advocacy

26 COMMISSION FOCUS February 15, 2012: Commission meets on PREGNANCY & CAREGIVER DISCRIMINATION

27 DISCRIMINATION AGAINST WORKERS WITH CAREGIVING RESPONSIBILITIES Changing workplace demographics Parental/caregiver status not protected group Unlawful where caregiver is subjected to discrimination based on sex/color/race Unlawful under ADA if based on association with an individual with disability

28 Unlawful discrimination against Caregivers Treating male caregivers more favorably than female caregivers Sex-based stereotyping of working women Reassigning woman to less desirable projects Reducing female employees workload Subjective decision-making Assumptions about pregnant workers: limiting job duties Discrimination against working fathers Hostile work environment

29 RETALIATION Thompson v. North American Stainless Regalado filed EEOC sex discrimination charge. 3 weeks after charge served, her fiancé Thompson was fired. Thompson sued. Is an employee relative of a charging party protected by Title VIIs anti-retaliation provision?

30 RETALIATION: Waiver of Rights EEOC v. Cognis Corp. Cognis required employees to sign agreement to never to file charges. Whitlow signed, but later refused to comply. Soon after, Whitlow was fired. Was it retaliation to terminate an employee for refusing to agree to unlawful terms?

31 MINISTERIAL EXCEPTION EEOC v. Hosanna-Tabor Teacher taught math, language arts, social studies, science, gym art, computers, music and a religion class 4 days for 30 minutes. Led class in prayers 3x day for 5 minutes. Took disability leave for narcolepsy; gets full medical release; tells principal that she wants to return to work. Board fired her because of alleged insubordination and disruptive behavior. Exempt from ADA as a ministerial employee?

32 DISABILITY: HIV+ Disclosure EEOC v. C.R. England Truck driver trainer voluntarily disclosed HIV status to HR Did not object to the company requiring trainees to sign form agreeing to train with HIV+ trainer Later fired for refusing a load and deadheading home without proper advance notice Was disclosure of HIV status to trainees and requiring the acknowledgement form unlawful? What was the adverse action?

33 TRANSGENDER: Title VII Macy v. Holder Police detective Macy applies for job as contract ballistics tech After job offer, Macy tells contractor of plans to transition to female Contractor tells ATF, ATF withdraws offer because of budget ATF refuses to investigate gender stereotyping claim Is gender stereotyping covered by Title VII?

34 GENDER IDENTITY GENDER IDENTITY : CORE CONCEPTS Gender: Social or cultural aspects of masculinity and femininity. Sex: A persons anatomy. Sex terms are male, female, transsexual, and intersex. Sex is biological; social views of sex are cultural. Gender Identity: An individual's internal sense of being male or female. Everyone has a gender identity which may or may not be the same as her or his sex. Gender Expression: External characteristics and behaviors – such as dress, grooming, mannerisms, speech patterns and social interactions – that are socially identified with a particular gender. Sexual Orientation: Who an individual is attracted to.

35 TRANSGENDER TRANSGENDER (OR TRANS) A broad term that encompasses people who experience and/or express their gender differently from conventional or cultural expectations. Many transgender people desire to live life as the gender different than birth, but not all.

36 GENDER TRANSITION Process of modifying ones gender expression and/or physical characteristics to match ones identity. Different for everyone. Can include: A name change Changing clothing style Real Life Experience Counseling, hormone therapy, or surgery

37 TRANSGENDER TITLE VII TRANSGENDER COVERED BY TITLE VII Sex discrimination claim exists if the employer discriminates… because the individual has expressed gender in a non- stereotypical fashion out of discomfort because the person has transitioned or is in the process of transitioning; because the employer simply does not like that the person is identifying as a transgender person *Macy v. Holder, EEOC Appeal No (April 20, 2012)

38 HETEROSEXUAL (STRAIGHT) PERSON HETEROSEXUAL (STRAIGHT) PERSON WITH A SEX-STEREOTYPING CLAIM Price Waterhouse – An aggressive female who talks, dresses and/or acts the way men in our society are stereotypically supposed to act. A metro-sexual male, who cares about his outfits, accessories and hair products. COVERED BY TITLE VII AS A SEX DISCRIMINATION CLAIM

39 LGB INVIDUAL LGB INVIDUAL WITH A SEX-STEREOTYPING CLAIM The person does not act in line with stereotypical notions of male and female. A gay or bi-sexual man who walks or carries himself in an effeminate manner. A lesbian or bi-sexual woman who has very short hair and wears mens clothes and shoes, for example. COVERED BY TITLE VII AS A SEX DISCRIMINATION CLAIM

40 TRANSGENDER INVIDUAL TRANSGENDER INVIDUAL WITH A SEX-STEREOTYPING CLAIM The person does not present in line with stereotypical notions of how males / females are supposed to appear. A male to female (MTF) who dresses in womens clothing or wears make-up or jewelry. A female to male (FTM) who wears shirts and ties or mens shoes or otherwise acts unladylike. COVERED BY TITLE VII AS A SEX DISCRIMINATION CLAIM

41 Resources EEOC website (www.eeoc.gov)www.eeoc.gov Arrest and Court Records Enforcement Guidance: cfm Qs and As on Arrest and Court Records: ion.cfm OPM Guidance on the Employment of Transgender Individuals:


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