Presentation on theme: "2012 EEOC Trends, Priorities and Updates"— Presentation transcript:
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. RieraHonolulu Local Office DirectorU.S. Equal Employment Opportunity Commission
2 AgendaCharge ReceiptsTrends and PrioritiesEEO Cases
3 General Counsel P. David Lopez THECOMMISSIONCHAIRJacqueline A. BerrienThe 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 CommissionerConstance Barker Victoria Lipnic Chai FeldblumGeneral CounselP. David Lopez3
5 #1 Type of Charge received nationally is Retaliation, #2: Race, #3: Sex, and a #4: Disability (LA’s #3)
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 EEOC’s inception, retaliation (37%) exceeded race (35.4%) as the #1 complaint filing.Mediation 9,831 resolutions $170+million benefits300 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 OutreachEfficiently Serving the PublicStrategic Law Enforcement objective includes development of a new strategic enforcement plan to better leverage the Commission’s resources to stop and remedy unlawful employment discriminationEducation and Outreach-significant partnerships with organizations that represent vulnerable workers and/or underserved communities as well as with organizations that represent small or new businessesEnsure effectiveness of its systems by leveraging technology to streamline, standardize and expedite the charge process across the field offices
8 Systemic ProgramSystemic 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 proactivepreventionEEOC 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 casesby taking a careful look at the practices they use to recruit, hire, promote, train and retain employees.
10 Systemic ProgramOGC priority---partnerships among the district offices-Shift to more cases on behalf of larger groupsFewer small cases, strategically selected to have impact beyond the named individualMore Commissioners’ Charges
11 Examples of Systemic Discrimination Racially discriminatory barriers in recruiting and hiring practicesExclusion of women from traditionally male dominated fields of workBarriers based on race, gender or national origin to higher level positionsDisability discrimination issues, including unlawful pre- employment inquiries
12 Examples of Systemic Discrimination Age discrimination in reduction in force and retirement benefitsRace and national origin discrimination in management trainee programsCompliance 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 4/25/2012on.cfmReportedly 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 felonyconvictions on their records in the US.
15 Statistics on Criminal Records Whatever statistics you look at, youwill 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 bothAfrican Americans and Hispanics.
17 criminal background checks Why Does the EEOC Care? Discrimination based on RACE or NATIONAL ORIGINIntentional Discrimination - Disparate TreatmentUnintentional 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 WhitesAll Men and Women (ages 18 and over)All………………………………………… 1 in 102White…………………………………….. 1 in 245Latino…………………………………… in 96African American…….………………… in 41Men (ages 18 and over)All………………………………………….. 1 in 54White………………………………………1 in 106Latino……………………………………... 1 in 36African American…………………………. 1 in 15African 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 PersonMultiple Reports of the Same IncidentUncorrected Identity TheftArrests Dropped For InnocenceExpunged Records Still Appear
20 Is There a Link Between Conviction and Job? Basic question: Does a criminal record suggest an unacceptable risk?Factors to AssessNature 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 DisabilitiesGuide for Employers – compares requirements underAmericans with Disabilities Act (ADA)Uniformed Services Employment and Reemployment Rights Act (USERRA)Guide for Wounded VeteransEEOC public meeting “Overcoming Barriers to the Employment of Veterans with Disabilities”February 2012 EEOC issued updated Guides concerning employment of Vets w/ DisabilitiesLast fall, Commission held a hearing on this topicIn the past decade: 3 million veterans have returned from military serviceOver 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 outreachDevelop targeted technical assistance and trainingAid for small businesses owned by women and minoritiesEnhance small business resources atFocus:Newly-establishedToo small to afford lawyers or human resource personnelLaunched Dec 15, 2011 – in fact I am a member of this task forceheaded by Commissioner BarkerIn addition to SF, … Birmingham, Charlotte, San Antonio, Los Angeles, PhiladelphiaEEOC Field Programs, General Counsel, Legal Counsel, Communications and Legislative AffairsGoal is to make EEOC more accessible to small employers who are new to the world of HR/EEO and with no inhouse legal or HRIf you have ideas about this, please feel free to contact me.
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 OPMRecommendations 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. EEOCU.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)DFEHOFCCP (updated )Partnerships for outreach and educationEmployer GroupsAdvocacyCross 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
27 DISCRIMINATION AGAINST WORKERS WITH CAREGIVING RESPONSIBILITIES Changing workplace demographicsParental/caregiver status not protected groupUnlawful where caregiver is subjected to discrimination based on sex/color/raceUnlawful under ADA if based on association with an individual with disability
28 Unlawful discrimination against Caregivers Treating male caregivers more favorably than female caregiversSex-based stereotyping of working womenReassigning woman to less desirable projectsReducing female employee’s workloadSubjective decision-makingAssumptions about pregnant workers: limiting job dutiesDiscrimination against working fathersHostile 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?
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 HRDid not object to the company requiring trainees to sign form “agreeing” to train with HIV+ trainerLater fired for refusing a load and ‘deadheading’ home without proper advance noticeWas 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 techAfter job offer, Macy tells contractor of plans to transition to femaleContractor 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: CORE CONCEPTS 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 TransitionProcess of modifying one’s gender expression and/or physical characteristics to match one’s identity.Different for everyone. Can include:A name changeChanging clothing style“Real Life Experience”Counseling, hormone therapy, or surgery
37 Transgender COVERED BY TITLE VII Sex discrimination claim exists if the employer discriminates…because the individual has expressed gender in a non- stereotypical fashionout 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).
38 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 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 men’s clothes and shoes, for example.COVERED BY TITLE VII ASA SEX DISCRIMINATION CLAIM
40 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 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 (www.eeoc.gov) Arrest and Court Records Enforcement Guidance: cfmQs and As on Arrest and Court Records: ion.cfmOPM Guidance on the Employment of Transgender Individuals: