Employment Discrimination in 2017

Laws Enforced by EEOC Title VII of the Civil Rights Act of 1964 (Title VII) Equal Pay Act of 1963 (EPA) Age Discrimination in Employment Act of 1967 Rehabilitation Act of 1973 Title I of the Civil Rights Act of 1991 Americans with Disabilities Act of 1990 (ADA) ADA Amendments Act of 2008 Genetic Information Non-Discrimination Act of 2008 (GINA)

8 Protected Categories + Retaliation national origin religion race color national origin disability sex* age (>40) genetic information * Gender Identity * Sexual Orientation + Retaliation

January 25, 2017 Acting EEOC Chair Victoria Lipnic Jenny Yang Chai Feldblum Charlotte Burrows General Counsel

EEOC Charge Receipts

SEP 2.0: Use EEOC Resources to Achieve Strategic Impact What it really does: Tightens the substantive priorities so they can work well with PCHP in terms of identifying priority charges (no broad, amorphous categories) Expressly adds a priority for matters that have “Strategic Impact.”

SEP 2.0: National Priorities— Six Familiar Substantive Areas Plus One Eliminating Barriers in Recruitment and Hiring Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination Addressing Selected Emerging and Developing Issues Ensuring Equal Pay Protections for All Workers Preserving Access to the Legal System Preventing Systemic Harassment Strategic Impact

SEP 2.0—Priority 1: Eliminating Barriers in Recruitment & Hiring Class-based recruitment and hiring practices Channeling/Steering practices Exclusionary policies and practices Restrictive application processes Screening tools Job segregation

ADEA 50th Anniversary December 1967 Age Discrimination in Employment Act signed into law by President Johnson

RECRUITING / HIRING BARRIER: Front-of-the-House Age Discrimination Directed Investigation (Boston, nationwide) Statistics: ~200,000 hires <3,000 over 40 EEOC expert: 1 in 781 billion chance “Smoking Gun” anecdotal evidence: “Legendary Image” company training Post-its: “Old ‘N Chubby,” “OLD,” “little older lady,” “middle age ... Doesn’t really fit our image.” Former HR: “Did we do it? Of course we did it. All you have to do is walk in the front door of our restaurants and see what people look like.”

RECRUITING / HIRING BARRIER: Front-of-the-House Age Discrimination EEOC alleged nationwide pattern/practice of age discrimination almost four-week trial: hung jury retrial scheduled May 15, 2017 March 2017 settlement: $12,000,000 for a class of individuals age 40 and older who applied to Texas Roadhouse for a front-of-the-house position between Jan. 1, 2007, and Dec. 31, 2014 Training & reporting & monitoring as part of 3 ½ year consent decree

SEP 2.0—Priority 2: Protecting Vulnerable Workers Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination Vulnerable workers remain a substantive area priority Nationally, this includes only vulnerable immigrant and migrant workers Locally, District Offices have identified the vulnerable workers and underserved communities in their regions (and they are different in different parts of the country)

Use of Arrest & Conviction Records An Early Civil Rights Issue 1964: Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin. 1969: EEOC investigates employment discrimination charges alleging employers use criminal records in a discriminatory way. 1975: 523 F.2d 1290, 1293 (8th Cir.): It’s discriminatory under Title VII for an employer to “disqualify[] for employment any applicant with a conviction for any crime other than a minor traffic offense.” 1987 1990 EEOC issues related policy statements 2006 13

Updated EEOC Guidance on Use of Arrest and Conviction Records (4/25/12) http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm Avoid use of arrests not leading to convictions. Limit inquiries to job-related convictions. Consider nature of conviction and job and time passed. Provide an individualized assessment: opportunity to explain inaccuracies and circumstances. Do not ask about convictions on job applications.

Protecting immigrant, migrant & vulnerable workers Each district identifies vulnerable or underserved workers within locale Focus on: Women Harassment Trafficking Pay Retaliation “They look at you like they own you, and whenever they want, they can have you.” Rape in the Fields A Frontline documentary by PBS highlighting the San Francisco District’s Office’s focus on sexual assault against farmworkers

VULNERABLE WORKERS Human Trafficking ‘Boys’ in the Bunkhouse: Henry’s Turkeys Judge Approves $2.4 Million EEOC Settlement with Four Hawaii Farms for over 500 Thai Farmworkers Judge Orders John Pickle Co. to Pay $1.24 Million to 52 Foreign Workers in 'Human Trafficking' Case Jury Awards $240 Million for Long-Term Abuse of Workers with Intellectual Disabilities

EEOC Updated Guidance on National Origin Discrimination November 2016 EEOC Updated Guidance on National Origin Discrimination Discrimination b/c you (or your ancestor) is from a certain place or shares physical, cultural, or language characteristics of a national origin (ethnic) group Client/Customer/ Employee preferences DO NOT justify discrimination Don’t make job assignments based on national origin Ensure policies re: accent, fluency, & language don’t violate TVII Americans & foreign nationals protected, regardless of immigration status

SEP 2.0—Priority 3: Emerging and Developing Areas of the Law ADA inflexible leave and qualifications standards Pregnancy accommodations LGBT (all issues, not just coverage) Complex Employment Relationships Backlash Discrimination.

SEP 2.0—Priority 3: Emerging and Developing Areas of the Law 3A: ADA: Narrowed—now covers only: ADA inflexible leave and qualifications standards 3B: Denial of accommodations for pregnancy-related limitations 3C: Discrimination against: Lesbians Gay men Bisexuals Transgender people.

Detour—ADA: What is “Undue Hardship” “Undue hardship” is defined as “significant difficulty or expense incurred by a covered entity” with respect to the provision of an accommodation.  In order to determine whether a proposed accommodation imposes an undue hardship on an employer, the following factors must be considered:

Detour—ADA: What is “Undue Hardship” The nature and net cost of the accommodation, taking into consideration the availability of tax credits and deductions, or outside funding; The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources; The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities; The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Detour—ADA: Is Leave Ever a Reasonable Accommodation? In a word, Yes! It’s the most commonly sought accommodation; It’s contemplated by the EEOC ‘s ADA regulations; If you don’t consider it, you have violated the requirement to engage in the interactive process.

SEP 2.0—Priority 3: Emerging and Developing Areas of the Law 3A: ADA: Narrowed—now covers only: ADA inflexible leave and qualifications standards 3B: Denial of accommodations for pregnancy-related limitations 3C: Discrimination against: Lesbians Gay men Bisexuals Transgender people.

The Americans with Disabilities Act Emerging & Developing Issues The Americans with Disabilities Act Qualification Standards v. Essential Functions Job Analysis v. Job Description WPM Typing Requirement Drivers License Requirement Inflexible Leave Policies Individualized Assessment EEOC v. Lowes, et al. May 2016 $8.6 million for nationwide maximum leave policy case Over 6000 former employees impacted

Protecting LGBT individuals from discrimination b/c of sex Emerging & Developing Issues Protecting LGBT individuals from discrimination b/c of sex Supreme Court: Sex Stereotyping (Hopkins v. Price Waterhouse, 1989) & Same-Sex Harassment (Oncale v. Sundowner Offshore Services, 1998) EEOC: Transgender Status/Gender Identity (Macy v. Department of Justice, 2012) & Sexual Orientation (David Baldwin v. Dept. of Transportation, 2015)

LGBT Discrimination: Gender Stereotyping March 2017: Aimee Stephens can intervene August 2016: EEOC’s lawsuit dismissed, ruling that employer protected by Religious Freedom Restoration Act; on appeal September 2014: EEOC sues Harris Funeral Homes for violating Title VII when it fired Stephens as a funeral director for not conforming to its "biological" sex-specific dress code. July 2013: Aimee Stephens wrote a letter notifying her boss that she was transitioning from male to female, and would conform to the workplace dress code for women. Two weeks later, she was fired. EEOC v. R.G. & G.R. Harris Funeral Homes

SEP 2.0—Priority 3: Emerging and Developing Areas of the Law 3D: Complex employment relationships: Type of Employee Temporary workers Independent contractors Type of Employer: Staffing Agencies On-Demand Economy Franchises Joint Employers.

Emerging & Developing Issues “Future of Work” Clarifying employment relationships in light of increasing complex employment relationships & structures Temporary Workers Staffing Agencies Independent Contractors On-Demand Economy Commission Meeting: 4.5.2017 “The State of the Workforce and the Future of Work”

SEP 2.0—Priority 3: Emerging and Developing Areas of the Law 3E: Backlash Discrimination: Addressing discriminatory practices arising from tragic events in the US and abroad, against: People who are Muslim or Sikh People of Arab, Middle Eastern, or South Asian decent People perceived to be members of these groups

Backlash Discrimination Emerging & Developing Issues Backlash Discrimination Focusing on Discrimination Against: Muslims or Sikhs Middle Eastern Individuals South Asian Individuals Persons perceived to be members of the above groups Persons associated with members of the above groups

Fired for refusing to remove her hijab at work. 18 year old Halla Banafa “Are you Muslim? Can you take that off?” sophomore Hani Khan had a spotless work record Hollister – Hillsdale Mall San Mateo 17 year old Samantha Elauf Denied hire due to A&F “Look Policy” Job interviewer: Gave low score in the “appearance and sense of style” category, after specifically asking about headscarf. Job interviewer: “Not the Abercrombie look” Fired for refusing to remove her hijab at work.

SEP 2.0—Priority 4: Ensuring Equal Pay For All Workers What’s the same: Commitment to ending pay discrimination based on sex What’s new: Pay discrimination focus based on race, national origin, disability, age, and other bases.

SEP 2.0—Priority 5: Preserving Access to the Legal System Overly broad waivers and releases Record keeping violations Mandatory arbitration provisions Significant retaliatory practices.

SEP 2.0—New Priority: Strategic Impact Has a significant impact on the development of the law Has a significant impact on promoting compliance across a large organization, community, or industry.

#solveharassment www.eeoc.gov/task_force/ harassment/report.cfm Rebooting Harassment Prevention: Preventing Harassment through Systemic Enforcement &Targeted Outreach Harassment continues to be one of the most frequently raised complaint— over 30% of all private sector cases 43% of Federal sector cases #solveharassment Report available at: www.eeoc.gov/task_force/ harassment/report.cfm A Bipartisan Effort

Findings Workplace harassment remains a persistent problem. There is a compelling business case for preventing harassment. Workplace harassment too often goes unreported. Findings Leadership and accountability can prevent harassment. Workplace risk factors should be evaluated. The good news: We have some creative ideas. Employers should consider Workplace Civility Training and Bystander Intervention Training. An It’s On Us campaign in the workplace could be a game changer. Training is important, but it needs to be the right training. Employers need compliance training that is effective.

Check out the Checklists! 1. Leadership & Accountability p. 79 2. Anti-Harassment Policy p. 80 3. Reporting Procedures & Investigations p. 81 4. Compliance Training p. 82 Appendix B: Checklists for Employers https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf

How does your workplace compare? Check out Appendix C: Risk Factors & Responses for strategies to reduce harassment Cultural and language differences in the workplace Workplaces with significant power disparities Workplace cultures that tolerate or encourage alcohol consumption Homogeneous workforces Workplaces where some workers do not conform to workplace norms Workplaces where work is monotonous or consists of low-intensity tasks Workforces with many young workers Isolated workspaces Workplaces that rely on customer service or client satisfaction Workplaces with ‘high value’ employees Coarsened social discourse outside the workplace Decentralized workplaces https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf

Harassment Charges and Complaints A Persistent Problem FY 2015 Private Sector Approximately 31% of private sector charges alleged harassment 31% FY 2015 Federal Sector Approximately 43% of federal sector complaints alleged harassment 43%

Harassment Charges and Complaints by Category: Fiscal Year 2015

Prevalence of Sex-Based Harassment Varying Definitions 25% 40% 60% Most Accurate Estimate 60% of women experience unwanted sexual attention or sexual coercion, OR sexually crude conduct or sexist comments in the workplace. More Accurate Estimate 40% of women experience unwanted sexual attention or sexual coercion, even if they don’t label it as “sexual harassment.” Most Conservative Estimate 25% of women experience “sexual harassment,” if not defined in the survey.

85% 70% Harassment is HUGELY UNDER-REPORTED Upwards of 85% of people never file a formal legal charge. Approximately 70% of employees never even complain internally.

Common Responses to Harassment Instead…… Common Responses to Harassment Avoid the harasser Endure the behavior Downplay the gravity of the situation Seek support from family & friends Attempt to forget the harassment Leave the job, if one can

IT’S ON US- IN THE WORKPLACE Employees should feel a sense of collective responsibility & empowerment to stop harassment at work. EEOC wants to act as a catalyst to help launch an “It’s on Us” campaign in the workplace.

Digital Charge System a/k/a ACT-Digital Big changes happening now Online and process changes Basic investigation process stays the same.

Changes For Charging Parties: Online Charge Status Tool (f/k/a Milestones) Provides information about the current state of a charge Designed for the Charging parties Useable by Respondents who have the charge number and the zip code (of the Charging Party) associated with the charge https://www.eeoc.gov/employees/charge_status.cfm.

ACT-Digital (DCS) Respondent Portal Online Notice of Charge Filing View and download Charges Electronic Position Statement Submission (including attachments) Electronic response to RFI requests Provide/verify respondent contact information, including the designation of a legal representative.

ACT-Digital (DCS) Benefits Provides better customer service Streamlines the enforcement system Saves resources Improved management of workflow Increased accountability and coordination Security.

ACT-Digital (DCS) Resources About EEOC's Digital Charge System and Its First Phase of Implementation Questions and Answers on Phase I of EEOC’s Digital Charge System Respondent Portal User's Guide for Phase I of EEOC's Digital Charge System.

Charlotte is one of the pilot offices Online Inquiry: Piloting Online Inquiry and Intake Interview Scheduling Tool (5 offices) Charlotte is one of the pilot offices Provides us with more information to better prepare for the intake interview Has not resulted in a noticeable change in our receipts.

Portal for the Charging Parties Both of the above by early Q4 Coming Attractions: Online Inquiry and Intake Interview Scheduling Tool deployment nationwide Portal for the Charging Parties Both of the above by early Q4 Digital closure documents by end of calendar year.

Contact Information & Resources U.S. Equal Employment Opportunity Commission Martin S. (“Marty”) Ebel Director, EEOC Field Management Programs martin.ebel@eeoc.gov Toll-free: 1-800-669-4000 TTY: 1-800-669-6820 www.eeoc.gov