perspectives from eeoc and ichr · perspectives from eeoc and ichr john stanley – eeoc...

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Perspectives from EEOC andICHR

JOHN STANLEY – EEOC SUPERVISORY TRIAL ATTORNEY

LINDA GOODMAN – ICHR ADMINISTRATOR

Society for Human Resource Management – Idaho State Council

2016 Employment Law Conference

Boise, Idaho September 30, 2016 1

TRENDING ISSUES

EEOC Strategic Enforcement Plan

Emerging LGBT Issues

Pregnancy Rights and Issues

Immigrant, Migrant and Other VulnerableWorkers

EEOC Pre-Suit Obligations

Retaliation, Wellness, Pay Data, and InteragencyCooperation Issues

Charge Processing and Promising Practices 2

EEOC STRATEGIC ENFORCEMENTPLAN

• Eliminating Barriers to Recruitment/Hiring

• Protecting Immigrant, Migrant and OtherVulnerable Workers

• Emerging and Developing Issues

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EEOC STRATEGIC ENFORCEMENT PLAN

• Enforcing Equal Pay Laws

• Preserving Access to the Legal System

• Preventing Harassment Through SystemicEnforcement and Targeted Outreach

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EMERGING LGBT ISSUES

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“SEX” DISCRIMINATION, GENDERNORMS AND BEYOND…

Macy v. Dept. of Justice, EEOC Appeal No.0120120821, April 20, 2012

Lusardi v. Dept. of Army, EEOC Appeal No.0120133395, April 1, 2015

Baldwin v. Dept. of Transp., EEOC Appeal No.0120133080, July 15, 2015

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RESOLVED TRANSGENDER ANDSEXUAL ORIENTATION CASES

EEOC v. Lakeland Eye Clinic, Inc., No. 8:14-cv-2421-T35 AEP (M.D. Fla. Sept. 25, 2014)

EEOC v. Deluxe Financial Services, Inc., No. 0:15-cv-02646-ADM-SER (D. Minn. Jun. 3, 2015)

EEOC v. Pallet Companies, Inc., No. 1:16-cv-00595-CCB (D. Md. Jun. 28, 2016) 7

THE “ODD STATE OF AFFAIRS” FROM HIVELY:MARRIED ON SATURDAY, FIRED ON MONDAY?

Affirming dismissal of sexual orientation claim as beyondscope of Title VII

“Flamboyant” gay men and “butch” lesbians may prevail ongender non-conformity theory; “straight-appearing” gayemployees lose

“Writing on the wall” is not enough, and Ct must adhere toprecedent

Hively v. Ivy Tech Cmty. Coll., No. 15-1720, 2016 WL 4039703(7th Cir. Jul. 28, 2016); EEOC amicus brief seeking rehearingen banc filed Aug. 29, 2016

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PREGNANCY RIGHTS AND ISSUES

• Title VII of the Civil Rights Act of 1964

• Idaho Human Rights Act, Title 67,Chapter 59 Idaho Code

• Pregnancy Discrimination Act of 1978

• Family and Medical Leave Act of 1993

• ADA Amendments of 2008

• 2010 FLSA Nursing Breaks Amendment

• Young vs. United Parcel Service 135 S.Ct. 1338 (2015)

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More Pregnant Women in the Workforce

• 1961-65: 35% of first-time mothers whoworked during pregnancy worked into their finalmonth.

Compare to 2006-08: 82% of first-timemothers who worked during pregnancyworked into their final month.

• 1970: Mean age at first birth was 21.4 years.

Compare to 2007: Mean age at first birth was25 years.

• 2012: 41% of all births were to single women.

IDAHO STATISTICS

Pregnancy discrimination charge percentages fromthe total number of sex discrimination cases filedwith ICHR.

• FY2013 14%

• FY2014 9%

• FY2015 18%

• FY2016 11%

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Pregnancy Discrimination Act of 1978

The terms “because of sex” or “on the basis of sex”include, but are not limited to, because of or onthe basis of pregnancy, childbirth, or relatedmedical conditions; and women affected bypregnancy, childbirth, or related medicalconditions shall be treated the same for allemployment-related purposes, including receiptof benefits under fringe benefit programs, asother persons not so affected but similar in theirability or inability to work [….]

42 U.S.C. § 2000e(k) 12

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1979 SEX DISCRIMINATION GUIDELINES

“Employment policies relating to pregnancy and childbirth

[…] An employer is required to treat an employee temporarilyunable to perform the functions of her job because of herpregnancy-related condition in the same manner as it treatsother temporarily disabled employees, whether by providingmodified tasks, alternative assignments, disability leaves,leaves without pay, etc. […] If other employees temporarilyunable to lift are relieved of [certain job] functions, pregnantemployees also unable to lift must be temporarily relieved of[those] function[s….]”

29 CFR §1604.1013

The Family and Medical Leave Act of 1993

• Twelve weeks of job-protected, unpaidleave per year for a covered workers:to care for her own serious health

conditionto care for a newborn child

• In the case of a medical necessity, FMLAleave may be taken intermittently or on areduced leave schedule.

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ADA Amendments Act of 2008

• Broadened protections for individuals with atemporary impairment that is not transitory orminor

• Extended coverage to include impairments thatsubstantially limit an individual’s ability to lift,stand, or bend.

• A pregnancy-related impairment thatsubstantially limits a major life activity is adisability. 29 C.F.R. § 1630.2(h).

• e.g., gestational diabetes, pregnancy-relatedsciatica 15

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The Affordable Care Act of 2010FLSA Amendment for Nursing Breaks

• Employers must provide “reasonable break timefor an employee to express breast milk for hernursing child for one year after the child’s birtheach time such employee has need to expressthe milk.”

• Employers are required to provide “a place,other than a bathroom, that is shielded fromview and free from intrusion from coworkers andthe public, which may be used by an employeeto express breast milk.” 16

Young v. United Parcel Service135 S. Ct. 1338 (2015)

• Facts: Employer’s light duty policy limited toworkers injured on the job, those withdisabilities, and those who lost Department ofTransportation certification to drive commercialmotor vehicles.

• Issue: When is employer who accommodatesnon-pregnant employees with work limitationsrequired under Title VII (PDA) to providecomparable work accommodations to pregnantemployees who are “similar in their ability orinability to work”? 17

Young v. United Parcel Service135 S. Ct. 1338 (2015)

• Held: Employer light duty policies or practices that donot explicitly exclude pregnant employees may stillviolate the PDA if they impose significant burdens onpregnant employees that cannot be supported by asufficiently strong justification.

• Providing light duty to large percentage of non-pregnantemployees while failing to provide light duty to a largepercentage of pregnant workers might establish that thepolicy or practice significantly burdens pregnant workers.Cost alone not a sufficient justification.

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IMMIGRANT, MIGRANT ANDOTHER VULNERABLE WORKERS

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EEOC v. Moreno Farms, Inc.

Unanimous verdict awarding a total of$17,425,000 to five former femaleemployees of Moreno Farms, Inc., whosuffered sexual harassment andretaliation.

No. 14-cv-23181, S.D. Fla. Sept. 10, 2015

See also, PBS Frontline Documentary “Rape in theFields,” available athttp://www.pbs.org/wgbh/pages/frontline/rape-in-the-fields/PBS Frontline Documentary “Rape on the NightShift,” available athttp://www.pbs.org/wgbh/pages/frontline/rape-on-the-night-shift/

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RECENT SEATTLE FIELD OFFICE CASES

EEOC v. Evans Fruit Co., Nos. 2:10-cv-3033 LRS/11-3093-LRS; E.D. Wash. (Jan. 28, 2016)

EEOC v. Roy Farms, Inc., No. CV-12-3117-TOR; E.D. Wash(Feb. 27, 2014)

EEOC v. River Point Farms LLC, No. 2:12-cv-01765-SU; D.Or. (May 13, 2013)

EEOC v. National Food Corp., No. 12-CV-0550-TOR; E.D.Wash. (May 15, 2013)

EEOC v. Holiday Special Trees LLC, No. CV-10-6306-TC; D.Or. (Sept. 12, 2011)

EEOC v. Willamette Tree Wholesale, Inc., No. 09-CV-690PK; D. Or. (Apr. 21, 2011)

EEOC v. Pacific Sea Food Co. Inc., No. CV-08-1143-ST; D.Or. (Feb. 1, 2011) 21

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EEOC AND ITS PRE-SUIT OBLIGATIONS

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EEOC AND ITS PRE-SUIT OBLIGATIONS

Charge and Notice, Investigation,Determination, and Conciliation

Conciliation Provision: 42 U.S.C. section 2000e-5(b)

Challenges to Adequacy of Conciliation andEEOC v. Mach Mining, Inc.

Question: Whether and to What Extent a CourtMay Enforce the EEOC’s Statutory Duty toConciliate Before Filing Suit

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PRE-SUIT OBLIGATIONS, CONT.

Held, EEOC Conciliation Efforts May beSubjected to Limited Judicial Review

Inform Employer of Claim and Give EmployerOpportunity to Discuss

For Failure to Do So, Reviewing Court Will OrderEEOC to Make Efforts to Obtain VoluntaryCompliance

Cases Not Subject to Dismissal

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PRE-SUIT OBLIGATIONS, CONT.

EEOC v. Sterling Jewelers, Inc., 801 F.3d 96 (2d Cir.2015) – Std of Review: Whether EEOC ConductedInvestigation, Not Sufficiency of Investigation

Arizona ex rel. Horne v. Geo Group, Inc., 816 F.3d1189 (9th Cir. 2016) – Conciliation RequirementsMet…

EEOC v. Bass Pro Outdoor World LLC, No. 15-20078,2016 WL 3397696 (5th Cir. Jun. 17, 2016) – Natureand Extent of Investigation Within Discretion ofEEOC; Court Review of Investigation Limited 25

EEOC’S RETALIATION GUIDANCE – AUGUST 25,2016

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RETALIATION GUIDANCE, CONT.

Participation is Protected Conduct Regardless ofWhether Employee Holds Reasonable, Good-Faith Belief that Allegations Are or CouldConstitute Unlawful Conduct

In Contrast to Opposition Clause, No LimitingLanguage

Protects Any Employee Participation inComplaint, Investigation or AdjudicationProcess

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Participation Includes Involvementin Internal EEO Processes

Stating a Complaint

Serving as a Witness

Participation that is EitherVoluntary or Employer-Required 28


Reasonable, Good-Faith Opposition CanInclude Complaints of Harassment Thatis Not Yet “Severe or Pervasive”

Faragher/Ellerth: EncouragingEmployees to Report Conduct Before itRises to Level of Hostile WorkEnvironment

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Managers, HR Personnel, Other InternalEEO Compliance Advisors Are Protectedfor Reasonable Opposition Regardless ofDuty to Report/InvestigateDiscrimination

Need Not “Step Outside” of EEO orManagerial Role to Have Engaged inProtected Activity

Pippin v. Boulevard Motel Corp., 2016 WL 4537894 (1st

Cir. Aug. 31, 2016)30

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Per Burlington Northern, HarassingConduct Can be Materially Adverse

Might Well Deter a Reasonable Personfrom Engaging in Protected Activity

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Materially Adverse Action May Include:

Reporting, or Threatening to Report,Employee’s Immigration Status;

Requiring Re-verification of ImmigrationStatus;

Making Threats of Deportation;

Initiating Other Action with ImmigrationAuthorities

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What Can Defeat a Claim of Retaliation?

Employer Unaware of Protected Activity;Absent Knowledge, No RetaliatoryIntent/Causal Connection

Legitimate, Non-Retaliatory Reason forChallenged Action: poor performance;inadequate qualifications, application orinterview performance; negative jobreferences; misconduct; reduction-in-force or other downsizing

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EEOC’S WELLNESS PROGRAM REGULATIONS –ISSUED MAY 17, 2016; APPLICABLE AS OFJANUARY 1, 2017

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TAKEAWAYS FROM EEOC’S FINALWELLNESS RULES

Permissible Incentive: 30% of total cost ofself-only plan for both employee and spouse

All WPs are covered under EEOC’s rules

Retaliation for non-participation in WP isprohibited

Employee with disability entitled to reas.accommodation under ADA to participate inWP or reach WP outcomes

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TAKEAWAYS FROM WELLNESS RULES,CONT.

WP must be “reasonably designed toimprove health or prevent disease”

Strict confidentiality rules

Clear notice requirement

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EEOC AND PAY DATA – REVISED PROPOSAL OFJULY 14, 2016

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EEOC AND PAY DATAEmployers with 100 or more employees thatalready file EEO-1 reports will provide summarypay data

Federal contractors with 50 to 99 employeeswould not submit pay data, only previouslyrequired demographic information

2017 EEO-1 report Due March 31, 2018

W-2 Box 1 income is measure of pay oncalendar year basis for 12 pay bands; capturessupplemental pay such as bonuses, overtime,and premium pay

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EEOC AND PAY DATA, CONT.Report Summary W-2 Income by Sex, Race,Ethnicity and Job Group

Report Hours Worked to Account for Part-Timeand Partial-Year Employment using FLSACategories

For FLSA Non-Exempt Workers, Report HoursWorked

For FLSA-Exempt Workers, Report Either: (1) 40Hours for Full-Time Workers and 20 Hours forPart-Time Workers, Multiplied by Number ofWeeks Employed in That Year; or (2) ActualHours Worked if Such Data is Already Kept

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EEOC AND MEMORANDA OF UNDERSTANDINGWITH OTHER AGENCIES

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EEOC AND MOU’S WITH OTHERAGENCIES, CONT.

Addendum to 12/07/11 MOU Between Departments ofHomeland Security/Immigration and CustomsEnforcement and Labor Applicable to EEOC (and NLRB)

DHS/ICE Agrees to Refrain from Enforcement Activities atWorksite Subject of Existing EEOC Investigation and AnyRelated Proceeding

Notwithstanding this Agreement, DHS/ICE May ConductWorksite Enforcement if Matter of National Security,Protection of Critical Infrastructure or Federal CrimeOther Than Violation Relating to UnauthorizedEmployment OR if Directed by Secretary of HomelandSecurity or Designee

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EEOC AND ICHR CHARGEPROCESSES AND PROMISINGPRACTICES

Receipt ofCharge

Response

Mediation

Investigation

Commission’sDetermination

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Receipt of Charge & Response

• Complainant files charge and ICHR staffassigned

• Respondent is served and has 30 days toanswer

• Response sent to Complainant

• Rebuttal statement is requested fromComplainant

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Mediation

• Mediation is a process in which an impartial third partyassists the parties to resolve their dispute.

invites the parties to the dispute to discuss the problem;

empowers the parties by facilitating problem solving, brainstorming,and mutual understanding;

facilitates the development of mutually acceptable agreements;

works to reduce hostilities and improve communication;

encourages cooperation and respect in an informal, creativeatmosphere.

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Mediation (continued)Mediation is voluntary; however, both parties must agreeto mediate. Unless both parties agree to use themediation process as a way to resolve theirdisagreement, mediation cannot occur.

• Approach mediation in good faith and with an open mind;

• Be willing to listen and to consider all aspects of the issues;

• Be active participants in mediation;

• Develop the terms of the settlement agreement with theassistance of the mediator.

• You should have the authority to settle, be ready to settle, andbe prepared to commit any resources agreed upon.

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InvestigationComponents of an Investigation

Employer’s Position Statement

Charging Party’s Rebuttal Statement

Request for Information

Interviews

On-Site Visit 46

Employer’s Position Statement

• Information about the Employer

Type of Business

History and Ownership

Number of Employees

• Denial of Allegations

Alternative Explanation for the EmploymentAction

Criticism of the Charging Party

Performance Problems

Conduct Problems 47

Requests for Information (RFI) –and EEOC Subpoenas

• Documents

Personnel Records of Charging Party and Others

Job Applications

Performance Evaluations

Disciplinary Records

Policies

Practical application

• Lists

Employees

Name, Position, Dates of Employment

Race, Sex, or other relevant category

Home Address and Home Telephone Number48

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Investigative Interviews & On-Site Visits

Managers and Supervisors• Employer Representative Is Usually Present• Often Done After All Other Interviews• Could Include Affidavits

Employees• Employer Representative Usually Not Present• May Provide Corroborating Documentation and/or Other

Witnesses

Tour of the Workplace• The Scene of the Alleged Events• Interview Management and Supervisors• Get More Detail with On-Site Interviews• Can Review Documents with Witnesses

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Determination

Standard: “Probable Cause”

• “More Likely Than Not” that Discrimination Occurred

Insufficient Evidence (Dismissal)

• ICHR Takes No Further Action

• Notice of Right to Sue Issued to Charging Party

• Charging Party May Sue Privately

Probable Cause (Violation)

• Conciliation Efforts Made

• ICHR No Longer Neutral 50

ConciliationSettlement After Probable Cause Determination

IHRC and Charging Party Agree Not to Sue

Terms of Conciliation Can IncludeHiring or ReinstatementTraining of Supervisors, Managers or EmployeesDiscipline of Discriminating IndividualPosting of a NoticePolicy ChangesDamages to the Charging Party

• Lost Wages (back pay and front pay) + Interest• Compensatory Damages• Punitive Damages• Non-economic Damages

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Litigation

Review by Staff and DAG

Decision to Litigate Made by Commissioners

Lawsuit May be Filed in State District Court

• DAG Represents Both ICHR and Charging Party

• Case No Longer Confidential

Pre-Trial Settlement

Trial 52

CONTACT INFORMATION

John Stanley (206) 220-6896

Linda Goodman (208) 334-2873

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