1 MASPA 2016 WINTER CONFERENCE EEOC REVIEW & UPDATENancy Mullett Kreis Enderle Hudgins & Borsos November 30, 2016
2 What are we talking about …Title VII of the Civil Rights Act of 1964 Prohibits discrimination in employment on the basis of race, sex, national origin and religion. It also is unlawful under the Act for an employer to take retaliatory action against any individual for opposing employment practices made unlawful by Title VII or for filing a discrimination charge or for testifying or assisting or participating in an investigation, proceeding, or hearing under Title VII. The Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers and the Employment Litigation Section, Civil Rights Division, U.S. Department of Justice enforces Title VII against state and local government employers. Title IX of the Education Amendments of 1972 Prohibits discrimination on the basis of sex in education programs or activities and extends to employment and admission to institutions that receive Federal financial assistance. The Office for Civil Rights (U.S. Department of Education), is the law enforcement agency charged with enforcing Title IX.
3 What are we talking about …Title VI of the Civil Rights Act of 1964 Prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving Federal financial assistance. Programs and activities that receive Federal financial assistance from the United States Department of Education are covered by Title VI. The Office for Civil Rights (U.S. Department of Education), is the law enforcement agency charged with enforcing Title VI. Admissions, financial aid, athletics, etc.
4 Numbers – 2016 EEOC The largest volume of work for EEOC is handling the hundreds of thousands of calls, inquiries, and charges from workers in the private and public sector seeking assistance with potential complaints of employment discrimination. In fiscal year 2016, EEOC handled over 585,000 calls to its toll-free number and more than 160,000 inquiries to field offices . There were 91,503 charges filed. That compares to 89,385 charges received in fiscal year 2015. Backlog of charges decreased to 73,508, at FY end 2016 from 76,408 at end of FY 2-15. .
5 Numbers – 2016 EEOC The number of lawsuits filed by the EEOC took a sharp decline, dropping from 142 merits lawsuits in FY 2015 to only 86 lawsuits in FY 2016 The number of systemic investigations completed by the EEOC remained the same BUT.. Money remedies declined from 33.5 million in FY 2105 to 20.5 million in FY Actual breakdown of complaints has not been released yet. Retaliation remains the #1 complaint - August 2016, EEOC issued its EEOC Enforcement Guidance on Retaliation because of its concern over the level of complaints. (More on next slide). .
6 EEOC Objectives Its stated objective is to transform itself from a “nationwide law firm” to a “national law enforcement agency”. By way of example in late August, the EEOC issued its final revision to the Enforcement Guidance on Retaliation and Related Issues (includes anticipatory retaliation). Recommending new written employer policies, provide reminders of policy of anti-retaliation upon receipt of discrimination complaint, new training and to review employment actions. Example shows how EEOC is positioning itself as an agency that is authorized to interpret anti-discrimination laws and federal decisions as it sees fit to serve its enforcement objectives. Introduce themselves as “federal investigators.” Appear to be advocating vs neutral or objective fact-finders.
7 What’s new ….LGBT On May 13, 2016, the U.S. Departments of Education and Justice issued a joint Dear Colleague Letter (“DCL”) stating that discrimination on the basis of gender identity is equivalent to discrimination on the basis of sex. The DCL instructed school districts on how to provide access to activities and facilities for transgender students. It also informed schools that failure to treat a transgender student the same as other students of the same gender identity could be considered discrimination under Title IX or its implementing regulations, thus putting federal funding in jeopardy. Following the publication of this DCL, thirteen states and two independent school districts filed suit in the U.S. District Court for the Northern District of Texas against the Departments of Education, Justice, and Labor, as well as the Equal Employment Opportunity Commission, and various agency officials. The States asked for a preliminary injunction that prevents the federal government from enforcing the DCL against schools and school boards.
8 What’s new ….LGBT On August 21, 2016, Judge Reed O’Connor of the Northern District of Texas released a detailed decision granting the injunction requested by the states. Judge O’Connor’s decision enjoins the Obama Administration from carrying out enforcement actions against schools and school districts regarding transgender issues nationwide. Current status - same. Other courts have ruled differently setting the stage for a U.S. Supreme Court case. The Supreme Court will hear a case involving a Virginia transgender high school student barred from using the boys' bathroom on campus. (October 28, 2016).
9 What’s new ….LGBT This injunction does not prevent parents of transgender students from suing school districts for discrimination. Nor does the injunction prevent school districts from offering policies, such as bathroom or locker room access policies, that provide transgender students protections in accordance with the DCL. As a practical matter – Title IX and Title VII prevent discrimination based upon sex. Many courts have ruled over the recent past years that sexual orientation/gender identity is necessarily an allegation of sex discrimination.
10 What’s new .… ADA/GINA - WellnessWellness Program decided. Specifically, an employer: May not require any employee to participate; May not deny any employee who does not participate in a wellness program access to health coverage or prohibit any employee from choosing a particular plan; and May not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten any employee who chooses not to participate in a wellness program or fails to achieve certain health outcomes. May provide limited financial and other incentives in exchange for an employee answering disability-related questions or taking medical examinations as part of a wellness program, whether or not the program is part of a health plan
11 What’s new.…EEO-1 EEOC also revised its Employer Information Report (EEO-1) to require employers to submit information regarding employee pay range and hours worked. The purpose of collecting this pay data along with race, ethnicity, sex, and job category would be to “assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination. Consistent with one of its priorities – pay equity. Approval by Commission was along party lines. Trump administration may very well cancel this requirement.
12 What’s new….HarassmentHarassment was also a hot button issue for the Commission in FY 2016, with a particular focus on Muslims and people of Middle Eastern origin. Among other things, the EEOC issued a call-to-action for employers to ‘reboot’ harassment prevention efforts. Issued Q & A for employers and employees around the responsibilities of employers and rights of employees who are or are perceived as Muslim or Middle Eastern.
13 Trump Administration PersonnelPresident Trump will have the opportunity to designate a new Chair. EEOC’s General Counsel, David Lopez, announced in October that he would be leaving the EEOC in December. Mr. Lopez has faced an intense level of scrutiny by Republican members of Congress for the way that the EEOC has focused on and pursued systemic cases, especially against employers where no aggrieved person has filed a discrimination charge. May face tighter or flat budgeting – as was the case during the Bush administration. In the past, EEOC has used systemic litigation as a creative way to deal with a reduced or flat budget and still meet their objectives - large, high-profile cases, settlements, and judgments that may have a greater deterrent effect, and would therefor affect a larger number of workers and industries. (More for less). Change in Substance and Priorities – Equal Pay has been a high priority of EEOC the past two years. Vice-President, Mike Pence has publicly opposed new pay equity legislation - so may be relegated to the back room. Along with new EEO-1 reporting requirements. Greater scrutiny and oversight regarding independence and autonomy of individual district offices.
14 The End Thank You (269)