osc: U.S. DEPARTMENT OF JUSTICE OFFICE OF SPECIAL COUNSEL FOR IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES EEOC: U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION JOINT WEBINAR FOR THE CHICKEN COUNCIL AUGUST 14, 2012

U.S. Department of Justice Civil Rights Division

Prohibited Conduct Under the INA’s Anti-Discrimination Provision (8 U.S.C. 1324b)  Citizenship/Immigration status discrimination  National origin discrimination  Document abuse  Retaliation or Intimidation Employer Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Document Abuse Examples When completing the Form I-9:  Requiring non-U.S. citizens to produce a List A document but allowing U.S. citizens to produce any document(s) they choose  Requiring non-U.S. citizens to produce documents from Lists A, B, and C  Requiring certain U.S. citizens to produce a certificate of naturalization  Rejecting documents that are valid based on citizenship status or national origin Employer Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Document Abuse & Form I-9  The Form I-9’s purpose is to establish a worker’s identity and work authorization  All employees hired after November 6, 1986, and working in the United States must complete an I-9 Form  The form has 3 sections Employer Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Form I-9: Section 1 Employee completes Section 1 after accepting a job offer and by the first day of work Employer Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Employer Hotline: Form I-9: Section 1 (cont.) Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Form I-9: Section 2 List A (Both Identity & Employment Eligibility) OR List B (Identity) + List C (Employment Eligibility) Office of Special Counsel for Immigration-Related Unfair Employment Practices: Employer Hotline: Worker Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices: Worker Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices: Employer completes Section 2 within 3 business days of the first day of work. ( If job begins Monday, Section 2 must be completed by Thursday )

Employer Hotline: Form I-9: Section 2 (cont.) Preventing Discrimination  An employer must allow the employee to present his or her choice of documentation to complete the I-9 Form  An employer may not ask for specific or more documents, or reject a valid document Office of Special Counsel for Immigration-Related Unfair Employment Practices:

 There are exceptions to the general rule that documents must be unexpired: Example - “Temporary Protected Status” or “TPS”: EAD with A-12 or C-19 category may be subject to an “automatic extension”  Generally, documents without an expiration date are unexpired: INS-issued Resident Alien card with no expiration date Employer Hotline: Form I-9: Section 2 (cont.) Documents with Expiration Dates Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Form I-9: Section 2 (cont.) Acceptable Receipts  Receipt for the replacement of a document that was lost, stolen or damaged (valid 90 days)  Arrival portion of Form I-94/I-94A with a temporary I-551 stamp and the individual’s photograph (valid for 1 year from issuance if no expiration date)  Departure portion of Form I-94/I-94A with a refugee admission stamp (valid for 90 days) Employer Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Form I-9: Section 2 Common Problems  Requiring non-U.S. citizens to produce a List A document but allowing U.S. citizens to produce any document they choose  Requiring non-U.S. citizens to produce documents from Lists A, B, and C  Failing to consult the current version of the Handbook for Employers or USCIS’s I-9 Central website, and rejecting less common I-9 documents, such as receipts Employer Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Form I-9: Section 3 (Updating and Reverification)  U.S citizens, Permanent Resident Cards (green cards), and List B documents should not be reverified!  Employer must accept a List A or List C document (e.g. unrestricted social security card) Employer Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices:

 A notice that the employee name and Social Security Number (SSN) submitted by employer do not match agency records  No-Match notices alone say nothing about immigration status or work authorization Employer Hotline: Social Security Number No-Match Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Responding to SSN No-Matches Employer Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Social Security Number Verification Service: SSNVS Employer Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices:

OSC Resources Employer Hotline: Office of Special Counsel for Immigration-Related Unfair Employment Practices:

Lucila G. Rosas, Administrative Judge 18

Applicable Laws Enforced by EEOC  Age Discrimination in Employment Act (ADEA) – prohibits discrimination of employees 40+  Americans with Disabilities Act and Amendments (ADA & ADAAA) – prohibits discrimination of employees with disabilities  Title VII – Civil Rights Act of 1964 – prohibits discrimination in employment on basis of : Race/ Color, National Origin, Religion and Sex – includes PREGNANCY DISCRIMINATION  ALL PROHIBIT RETALIATION  Coverage: Title VII & ADAAA– 15 or more employees, ADEA = 20+ employees Time Period: 180 days from incident, except where State agency, then 300 days.

ADA Amendments Act of 2008(ADAAA)  ADAAA – modifies ADA; applies to incidents after Jan. 1,  ADAAA - prohibits discrimination on the basis of disability.  Modifies definition of individual with a disability: 1. has a physical or mental impairment that substantially limits one or more major life activities (“actual disability”) - such as walking, talking, seeing, learning, or 2. record of a physical or mental impairment that substantially limited a major life activity (“record of”), or 3. when an employer takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”)  See EEOC’s website for info re: ADAAA

ADA Amendments Act of 2008 (ADAAA)  Impact of the ADAAA on coverage: Easier to establish coverage as a person with a disability Focus is on questions re: reasonable accommodation  Coverage easier because: Major life activities include major bodily functions: Broad construction of “substantially limits” Ameliorative effects of mitigating measures NOT considered Impairments that are “episodic” or “in remission” are substantially limiting if they would be when ACTIVE. Impairment that is temporary – one that will last fewer than six months – can be substantially limiting  See 29 C.F.R. §1630.2(j)(3)(iii) for a list of impairments that will generally be covered under the new definitions and rules of construction.

Reasonable Accommodation & Interactive Process  A request for reasonable accommodation is the first step in an informal, interactive process between individual & employer.  Ultimate goal of interactive process = find an accommodation that will allow the individual w/ disability to perform essential functions of job w/o imposing undue hardship on employer.  “Plain English” language ok. Don’t have to use words “reasonable accommodation” or “ADA”.  Interactive process should be informal – not legalistic.  Employee’s best interest to come forward & notify employer.  Employer’s best interest to notify employees that it’s ok to come forward about their need for accommodations.

Undue Hardship – Definition and Considerations:  An employer is not required to provide a reasonable accommodation if doing so would impose an undue hardship on the employer.  The definition of undue hardship is “significant difficulty or expense.”  An employer can show that an accommodation imposes either significant financial difficulty or significant operational difficulty.  The undue hardship analysis is completely case specific.

Examples of Reasonable Accommodations  Restructuring job, i.e. shifting minor tasks to others or changing how job is done, etc.  Flexible work schedule (modified or part-time work schedule)  Telecommuting  Computer assistive programs  Leaves of absence (different from leave under Family Medical Leave Act)

No-Fault Attendance and Maximum Leave Policies  Under No-Fault Attendance policies, employee is automatically terminated after having been on leave for a certain period of time.  The ADA does not prevent an employer from having a no-fault attendance policy or a maximum leave policy.  BUT – the ADA requires an employer to modify the no-fault aspect of its attendance policy or extend the maximum amount of leave -- if providing such modifications as a reasonable accommodation would not impose an undue hardship on the employer.

Pregnancy Discrimination Act  In 1978, Congress amended Title VII to prohibit discrimination on the basis of pregnancy.  Act makes it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.  Prohibits Retaliation.

Pregnancy Discrimination = Sex Discrimination An employer cannot...  refuse to hire a woman because of pregnancy, as long as she is able to perform the major functions of her job.  fire an employee because of pregnancy or the prejudices of co-workers, clients or customers.  force an employee to stop working due to pregnancy.  harass a pregnant employee.

Pregnancy Discrimination Act and Maternity leave  Employers must: Give leave for pregnancy-related disabilities under same terms or conditions as for other temporary disabilities. Let employee specify when leave begins or ends Hold job open in the same manner as other temporary disability conditions Continue medical coverage for pregnant employee as with employees with other medical conditions.

TRENDS IN AGE DISCRIMINATION CASES  EEOC charges account for over 20% of total charges received.  Ageist Stereotypes deeply entrenched “less adaptable, harder to train, less flexible, more resistant to change”  If laid off, less likely to find new jobs, takes longer to find job and if hired, generally earn less. Defendant would not have made same decision anyway.  More difficult for employee to prove age discrimination given Supreme Court decisions.

AGE DISCRIMINATION  Employee must show: He/she is 40 years of age or older and Treated less favorably than other similarly situated employees outside of this protected class (under the age of 40 years old and/or substantially younger than complainant). ADEA applies to all forms of employment actions, including hiring, firing, promotion, and terms and conditions of employment.

Gross Decision and It’s Impact on ADEA litigation  Gross v. FBL Financial Servs., Inc., 129 S. Ct (2009) – Supreme Court held: 1) mixed-motives jury instruction is never proper under the ADEA; 2) Plaintiff must show that age was the “BUT FOR” cause of discrimination in all circumstances.  In practice, plaintiff must show that Def. would not have made same decision - even if Def. admits that it took an adverse employment action in part because of age.

EEOC Guidance on ADEA and Disparate Impact  EEOC final rule on Reasonable Factors Other than Age (RFOA) makes EEOC’s existing regulation consistent w/ Supreme Court’s holding in Smith and Meachem & explains meaning of RFOA defense. (See 29 CFR § (e))  Cases held that employer bears the burden of proving the RFOA defense.  Provides non-exhaustive list of considerations to determine if practice by employers is RFOA (29 CFR § (e)(1) – (5)).  See for additional information. 32