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2012 EEOC Trends, Priorities and Updates

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1 2012 EEOC Trends, Priorities and Updates
Welcome to our annual seminar. Repeats/ New-to-TAPS (EEOC alphabet soup for Technical Assistance Program Seminar). I am here to give you the big picture perspective and the items that shaped our seminar. It’s been a particularly busy year in terms of public Commission hearings, new guidance issued, and key initiatives within the agency. Ten slides follow, on the trends we see shaping up, and key priorities and projects for 2012. 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 The agency is run by a bipartisan Commission comprised of five presidentially appointed members, including the Chair and four Commissioners. The Chair is responsible for the administration and implementation of policy, financial management and organizational development of the Commission. The Commissioners participate equally in the development and approval of Commission policies, can file individual charges of discrimination where appropriate, and authorize the filing of suits. In addition to the Commissioners, the President appoints a General Counsel to support the Commission and provide direction, coordination, and supervision to the EEOC's litigation program. 4 of the 6 individuals noted here were appointed this year by President Obama: Chair Berrien, Commissioners Lipnic and Feldblum along with General Counsel P. David Lopez, who was an unprecedented nomination from our Phoenix District Office as the former Supervisory Trial Attorney there. Chair Berrien comes to the EEOC from the NAACP Legal Defense and Educational Fund (LDF), where she served as Associate Director-Counsel. Commissioner Lipnic was an attorney with the law firm of Seyfarth Shaw and the former U.S. Assistant Secretary of Labor for Employment Standards. Commissioner Feldblum was a Professor of Law at the Georgetown University Law Center, but also played a leading role in drafting the ground-breaking Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008. Commissioner Commissioner Commissioner Constance Barker Victoria Lipnic Chai Feldblum General Counsel P. David Lopez 3

4 EEOC Charge Receipts NATIONAL (FY 2000 – FY 2011)
FY 2000  FY 2001  FY 2002  FY 2003  FY 2004  FY 2005  FY 2006  FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 79,896 80,840 84,442 81,293 79,432 75,428 75,768 82,792 95,402 93,277 99,922 99,947 4

5 #1 Type of Charge received nationally is Retaliation, #2: Race, #3: Sex, and a #4: Disability (LA’s #3)

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 EEOC’s 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) In Fiscal Year 2007, EEOC received 27,112 charges alleging harassment as an issue. Sexual harassment charges surged in last decade. In Fiscal Year 2007, EEOC received 12,510 charges of sexual harassment. 16.0% of those charges were filed by males.

7 EEOC Strategic Plan 2012 - 2016 Strategic Law Enforcement
Education and Outreach Efficiently Serving the Public Strategic Law Enforcement objective includes development of a new strategic enforcement plan to better leverage the Commission’s resources to stop and remedy unlawful employment discrimination Education and Outreach-significant partnerships with organizations that represent vulnerable workers and/or underserved communities as well as with organizations that represent small or new businesses Ensure effectiveness of its systems by leveraging technology to streamline, standardize and expedite the charge process across the field offices

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.” In April 2006, EEOC adopted recommendations from an internal task force report that focus on strengthening the Commission's nationwide approach to investigating and litigating systemic cases. Under the systemic program, the EEOC will oversee the following operational enhancements: National Law Firm Model – The EEOC is working on staffing systemic lawsuits based on the needs of the case, rather than based on the office where the case arose. This will result in the district offices improving how they work with each other, allowing the EEOC to make better use of existing expertise and cultivate staff to develop additional expertise nationwide. Technology – The EEOC is expanding its use of technology and information systems to serve as tools that can help investigators and attorneys identify systemic discrimination. For example, the EEOC is integrating EEO-1 reports with charge data to more readily identify potential systemic issues. Early Identification – Investigators and attorneys are working together to identify systemic cases early in the process. Education – Field attorneys and investigators will continue to receive specialized training on investigating and litigating systemic cases. Partnering – District offices are expanding their efforts to partner with one another, as well as with the plaintiff’s bar, advocacy groups, and other state and federal agencies. They are also reaching out to employer groups to encourage employers to identify and address any discriminatory practices proactively.

9 Systemic Program 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. Priority for investigations and litigation. More training and technology for collaborative work on larger and more complex cases by taking a careful look at the practices they use to recruit, hire, promote, train and retain employees.

10 Systemic Program 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 Reportedly ex-offenders are one of the fastest growing segments of our population. In 1980,170,000 were released from prison. In 2009, it was over 720,000. In 2004, there were more than 14 million individuals with felony convictions on their records in the US.

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 be “conviction free”… …this policy or practice may have a DISPARATE IMPACT on both African Americans and Hispanics.

17 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 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? Does applicant data and population data, as appropriate, show disparate impact? African Americans are Incarcerated at a Rate Six Times that of Whites All Men and Women (ages 18 and over) All………………………………………… 1 in 102 White…………………………………….. 1 in 245 Latino…………………………………… in 96 African American…….………………… in 41 Men (ages 18 and over) All………………………………………….. 1 in 54 White………………………………………1 in 106 Latino……………………………………... 1 in 36 African American…………………………. 1 in 15 African American (Men ages 20 – 34).. 1 in 9 (Pew Center on the States, "One in 100: Behind Bars in America 2008")

19 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 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” February 2012 EEOC issued updated Guides concerning employment of Vets w/ Disabilities Last fall, Commission held a hearing on this topic In the past decade: 3 million veterans have returned from military service Over next five years: one million are expected to return to civilian life, with the anticipated drawdown of operations in the Middle East. According to an October report from the Bureau of Labor Statistics, unemployment for post-9/11 era veterans ~12%, (3 percentage points higher than the overall unemployment rate)

22 Small Business EEOC Small Business Task Force Focus:
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 Launched Dec 15, 2011 – in fact I am a member of this task force headed by Commissioner Barker In addition to SF, … Birmingham, Charlotte, San Antonio, Los Angeles, Philadelphia EEOC Field Programs, General Counsel, Legal Counsel, Communications and Legislative Affairs Goal is to make EEOC more accessible to small employers who are new to the world of HR/EEO and with no inhouse legal or HR If you have ideas about this, please feel free to contact me.

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.

Partnerships emphasized between: U.S. EEOC U.S. Department of Labor’s 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 Cross training (for internal staff) Joint investigation? Outreach and education: today we have representatives from DFEH (Marlene Massetti and Kate Riley) and OFCCP (Sharon Solero) We also have a staff attorney (and former EEOC investigator) from the NLRB


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 employee’s 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 VII’s 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?

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?

Gender: Social or cultural aspects of masculinity and femininity. Sex: A person’s 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. Sex: A person’s anatomy (genitalia, chromosomes, and reproductive system). Sex terms are male, female, transsexual, and intersex. Sex is biological; social views of sex are cultural. NOTE: Courts often use the terms gender and sex interchangeably in the Title VII context. 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 identity is generally determined in the early years of an individual's life and, if different from the individual's physical gender, may result in psychological and emotional discomfort.  The way an individual expresses his or her gender identity is also frequently called “gender expression.”

35 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 one’s gender expression and/or physical characteristics to match one’s identity. Different for everyone. Can include: A name change Changing clothing style “Real Life Experience” Counseling, hormone therapy, or surgery

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) “In each of these circumstances, the employer is … violating the Supreme Court’s admonition that ‘an employer may not take gender into account in making an employment decision.’ Price Waterhouse, 490 U.S. at 244.” Macy at p.8 (emphasis added).

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

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 men’s clothes and shoes, for example. COVERED BY TITLE VII AS A SEX DISCRIMINATION 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 women’s clothing or wears make-up or jewelry. A female to male (FTM) who wears shirts and ties or men’s shoes or otherwise acts “unladylike.” COVERED BY TITLE VII AS A SEX DISCRIMINATION CLAIM

41 Resources EEOC website (
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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