1. Employment Discrimination in 2017

2. 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 (GINA)

3. 8 Protected Categories + Retaliation national origin religion race
color
national origin
disability
sex*
age (>40)
genetic information
* Gender Identity
* Sexual Orientation
+ Retaliation

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

5. EEOC Charge Receipts

6. 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.”

7. 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

8. 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

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

10. 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.”

11. 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

12. 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)

13. 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
EEOC issues related policy statements
2006 13

14. Updated EEOC Guidance on Use of Arrest and Conviction Records (4/25/12)
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.

15. 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

16. 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

17. 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

18. 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.

19. 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.

20. 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:

21. 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.

22. 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.

23. 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.

24. 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

25. 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)

26. 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

27. 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.

28. 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:
“The State of the Workforce and the Future of Work”

29. 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

30. 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

31. 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.

32. 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.

33. 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.

34. 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.

35. #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:
harassment/report.cfm
A Bipartisan Effort

36. 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.

37. 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

38. 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

39. 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%

40. Harassment Charges and Complaints by Category: Fiscal Year 2015

41. 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.

42. 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.

43. 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

44. 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.

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

46. 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

50. 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.

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

52. 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.

59. 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.

60. 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.

61. Contact Information & Resources
U.S. Equal Employment Opportunity Commission
Martin S. (“Marty”) Ebel
Director, EEOC Field Management Programs
Toll-free:
TTY: