What Will the EEOC be focused on in 2016 &

Why Should the HR Community Care?”

Joe Bontke

Outreach Manager & Ombudsman EEOC Houston District Office

713 651 4994 office 713 907 2855 cell joe.bontke@eeoc.gov

Obligations of Employers

- Make the workplace free of unlawful

discrimination, harassment and retaliation

- Promptly and confidentially investigate

complaints of discrimination, harassment and

retaliation

- Where discrimination, harassment and retaliation

may have occurred, take prompt and appropriate

remedial action (i.e., discipline commensurate

with the offense)

The box made

it look so very

easy

The 136 page

instructions

said it would

take “three

people

two hours”

1 Happy Granddaughter

Generational Groups

Traditionalists (prior 1945) Baby Boomers (1946-1963) Generation X (1964-1980) Millennial (1981-2000) Generation Z (2000-today)

Workplace Dynamics ?

Define these terms

Appropriate

Casual

Team player

Effective communication

Person With a disability

The Digital Age Welcome to the Virtual World

of:

“Friends”: Facebook &

Instagam

- Mostly social, but growing

business network

“Connections”: LinkedIn - “Facebook in a suit”

“ Followers”: Twitter - Instant messaging on steroids

SEP National Priorities

1. Eliminate barriers in recruitment and hiring

2. Protect immigrant, migrant and other vulnerable workers

3. Address emerging and developing employment discrimination issues

4. Enforce equal pay laws

5. Preserve access to the legal system

6. Prevent harassment through systemic enforcement and targeted

outreach

Headlines & the truth

Enforcement Raids?

Strategic Enforcement Plan Overview

National + Local Priorities = Impact http://www.eeoc.gov/eeoc/plan/sep.cfm

Adopted December 2012

Purpose: To focus and coordinate EEOC programs to have a sustainable impact in reducing/

deterring discrimination

Six national priorities

Integrated enforcement approach

District plans

Discretion to investigate and litigate non-SEP issues

Enforcement Focused on Priorities

Strategic enforcement leads to greater impact thru focused attention on priorities and allocation of resources

Prioritization means focus, not disregard for other issues.

Continued Enforcement on other issues where government action has impact

ENFORCEMENT PRIORITY NO. 1:

Hiring and Recruitment.

Priority to Criminals?

Hire Bad Employees?

Forced Hiring of Convicts?

Criminal Background Checks

• Why is the Commission interested in this?

– Using blanket policies may adversely impact certain protected groups

– Reports contain errors

– http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

• Disparate Treatment

• Adverse Impact:

Criminal Background Checks

• Must show “job relatedness” and “consistent with business necessity” (Green v Missouri Pacific Railroad)

• Some level of risk is inevitable in all hiring. It’s ultimately about risk management

• Must accurately distinguish between those applicants who pose an unacceptable risk and those who do not (be careful of blanket exclusions)

Criminal Background Checks

Two circumstances where employers will meet “job relatedness” and “consistent with business necessity”

– The employer validates the criminal conduct screen

for the position in question

– The employer is considering at least: • the nature of the crime,

• the time elapsed, and

• the nature of the job ,

• Georgia (2015)

• Delaware (2014)

• Nebraska (2014)

• Illinois (2014)

• New Jersey (2014)

• California (2013)

• Maryland (2013)

• Minnesota (2013)

• Rhode Island (2013)

• Colorado (2012)

• Connecticut (2010)

• Massachusetts (2010)

• New Mexico (2010)

• Hawaii (1998)

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– Qs and As: http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

– What You Should Know Fact Sheet: http://www.eeoc.gov/eeoc/newsroom/wysk/arrest_conviction_records.cfm

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Additional EEOC Resources on Criminal Background Checks

REFERENCE CHECKING

HAVE YOU EVER HAD A “BAD HIRE”?

What is truth?

Finished files are the re-

sult of years of scientif-

ic study combined with the

experince of many years

of experts.

Finished files are the re-

sult of years of scientif-

ic study combined with the

experince of many years

of experts.

Is your perception …. Sometimes your truth?

• Sometimes we have to take another look at what we think we know

Immigrant, Migrant and Other Vulnerable Workers

Immigrant, Migrant and Other Vulnerable Workers

• Disparate Pay

• Job Segregation

• Harassment

• Trafficking

• Vulnerable workers are those who are unaware of their rights or reluctant or unable to exercise them

• Individuals with intellectual disabilities

• Youth in their first jobs

EEOC v. Henry’s Turkey Service (W.D. Iowa 2013)

http://www.nytimes.com/interactive/2014/03/09/us/100000002755950.app.html?_r=0

EEOC v. Henry’s Turkey Service

• $240,000,000 jury verdict in favor of EEOC for 32 intellectually disabled men

• Highest verdict in the history of the EEOC; second highest in U.S. history under federal anti-discrimination laws

• Court granted summary judgment in favor of EEOC on its wage discrimination claims in the amount of $1,300,000

• $7,500,000 each to 32 disabled victims ($2,000,000 in punitive damages and $5,500,000 in compensatory damages)

• Verdict reduced to $1,600,000 (0.67 of jury verdict per person)

Veterans: Employment

– As of 2011, there were 21.6 million veterans in the U.S.

– 2.4 million veterans have served during the Gulf War II period. 17% of these veterans are women.

– As of the end of Fiscal Year 2011, Gulf War II veterans are experiencing significant unemployment rates: Example: 18-24 year old male Gulf War II vets: 29% (non-vet males of same age: 17%)

– Unemployment rates for veterans generally – about 8%

Veterans: Disabilities

• Gulf War Veterans are more likely to report a service-connected disability than other veterans (26% versus 14% for all veterans) About 3 million veterans have service-connected disabilities.

• Unemployment rates for all veterans – those with disabilities and those without – are about the same – about 8%.

• Unemployment rates for Gulf War II veterans with and without disabilities are about the same – about 12%.

Post-Traumatic Stress Disorder & Traumatic Brain Injury

• Approximately 5000 combat deaths Iraq and Afghanistan • 30,000 suicides each year – 20% veterans • State of Minnesota study of returning Guard troops:

– 25% ran red lights – 25% drove down center of road

• DOD lists approximately 32,000 casualties (Iraq/Afghanistan) • 2008 study - 300,000 vets with PTSD and 320,000 vets with Traumatic

Brain Injury • VA estimates approximately 400,000 vets Iraq/Afghanistan have PTSD • PTSD: Vietnam = 30%, Iraq/Afghanistan = 20% • 19% of soldiers Iraq/Afghanistan sustained brain injury from explosive

device • Limited Traumatic Brain Injury is not the result of overt trauma, and the

soldier may not even be aware of the injury • Limited Traumatic Brain Injury and PTSD exhibit similar symptoms

EEOC Charge Statistics

Fiscal Year

EEOC Charge Statistics

TBI

Fiscal Year

Post-Traumatic Stress Disorder & Traumatic Brain Injury

• Possible Symptoms: – Short-term memory loss – Lack of concentration – Trembling – Irritability – Restlessness – Sensitivity to noise – Heightened sense of suspicion

• Possible Accommodations:

– More written instructions – More reminders – Organizers – Allow to tape meetings – Reduce distractions – Allow I-pod/MP3 Player – Natural light – Break large assignments into smaller ones – Not an exhaustive list (see Accommodating Employees with PTSD and Accommodating

Employees with TBI, Office of Disability Employment Policy, Veterans’ Employment and Training Service)

“Presumed PTSD”

Veterans advocacy organizations and media reports have indicated a bias against veterans in the form of a presumption that they have mental health issues, such as PTSD.

ENFORCEMENT PRIORITY NO. 3: Enforcement Guidance on

Developing & Emerging Issues

Emerging and Developing Issues

These can change over time as EEOC responds to:

– demographic changes (e.g., an aging workforce),

– recently enacted legislation,

– developing judicial and administrative interpretations and theories, and

– significant events (e.g., the Boston attacks)

Currently prioritized: 1. Specific ADA issues:

qualification standards, reasonable accommodation practices

2. Accommodating pregnancy-related limitations; the intersection of the ADAAA and the PDA

3. Sex Discrimination against LGBT individuals under Title VII

Are You Kidding Me?

Internet Addiction?

• Addictions can be covered by ADA

– Drug

– Alcohol

• Does not mean, however, employee can show up to work high or drunk.

• Likewise, an employer would not have to allow a person time to be on the internet.

High School Dropouts Disabled?

• EEOC did not say high school dropouts are disabled

• A person who may not have completed high school because of a learning disability may, however, be covered by the ADA.

Emerging and Developing Issues: Commission Activities

Commission Meetings: Unlawful Discrimination Based on Pregnancy and

Caregiver Responsibilities (February 2012)

Use of Leave as Reasonable Accommodation (June 2011)

Employment of People with Mental Disabilities (March 2011)

ADAAA Regulations Issued (3/25/2011)

Anyone Know the Difference between a Performance Standard and an Essential Function?

Did We Really Say That?

July 14, 2014: EEOC issues updated enforcement guidance on PREGNANCY DISCRIMINATION.

PREGNANCY DISCRIMINATION

Title VII (Pregnancy Discrimination Act),

The Americans with Disabilities Act

Accommodating pregnancy-related limitations under both laws is a priority under EEOC’s Strategic Enforcement Plan

More Pregnant Women in the Workforce

• 1961-65: 35% of first-time mothers who worked during pregnancy worked into their final month.

• Compare to 2006-08: 82% of first-time mothers who worked during pregnancy worked into their final month.

1970: Mean age at first birth was 21.4.

Compare to 2013: Mean age at first birth was 26.

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

PDA: “Adverse Employment Actions”

Examples:

No hire – EEOC v. Subway (Ariz. 2012)

Discharge – EEOC v. Noodles Asian Bistro (Memphis

2015)

Invol. Transfer – EEOC v. Catholic Healthcare (Ca.

2008)

Full Medical Clearance Requirement – EEOC v. Britthaven (NC 2012)

Harassment – EEOC v. DTM (Md. 2011)

EEOC’s Updated Guidance on Pregnancy Discrimination (June 2015)

In response to the Supreme Court’s decision in Young, the Commission updated parts of its Enforcement Guidance on Pregnancy Discrimination and Related Issues. http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

The updated pages explain that under Young:

employer light duty policies that do not explicitly exclude pregnant employees may still violate the PDA if they impose significant burdens on pregnant employees The bulk of the Enforcement Guidance, first issued in 2014, remains unaffected by the decision in Young.

Pregnancy and the ADAAA

EEOC regulations still make a distinction between “normal” pregnancies and those with complications.

See EEOC’s Questions and Answers on the Final Rule Implementing the Amended ADA, at Question 23, available at http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm

Generally, under the ADAAA’s expanded rules of construction and definitions, many more pregnancy-related conditions now may qualify as “physical impairments” supporting “actual disability” and “record of such disability” claims.

LGBT Coverage

New area of enforcement for the EEOC

Attempt to conform sex coverage to other forms of coverage: e.g., Race, National Origin, Age, Disability, and Religion

April 20, 2012: Commission issued decision stating that discrimination based on TRANSGENDER STATUS (as GENDER IDENTITY) is recognized under Title VII.

LEGAL PROTECTIONS FOR LGBT WORKERS:

The decision is pretty unambiguous. See page 6, 1st paragraph,

"We conclude that sexual orientation is inherently a sex-based consideration, and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII."

Gender Stereotyping

• In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court found that actions taken because of sex stereotyping are actions made on the basis of gender and therefore violate Title VII.

Gender Stereotyping • The EEOC takes the position that transgender

discrimination is sex discrimination because it is based on gender stereotyping

• May be helpful to review these policies: – Harassment

– Codes of conduct

– Dress codes and appearance standards

– Background and security clearance

– Changing ID cards, names, personnel records

– Non-disclosure of medical information

– The use of restrooms, locker rooms and other gender-specific facilities

Transgender Coverage

• Sex discrimination claim exists if the employer discriminates…

• because the individual has expressed gender in a non-stereotypical fashion

• out of discomfort because the person has transitioned or is in the process of transitioning;

• because the employer simply does not like that the person is identifying as a transgender person

*Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012)

F r e q u e n t l y A s k e d Q u e s t i o n s

Q) Is a transgender individual

required to inform an employer or prospective employer about his or her birth gender?

A) No. Possible Exception: security clearance

What about bathrooms?

• Access to adequate sanitary facilities required for all employees

• Once transitioning employees begin living and working full-time in the gender that reflects his or her gender identity, employers should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her gender identity.

Is it really about the Bathrooms? The civil rights movement during the 1950s fought to end the prevailing practice prohibiting African Americans from using so-called “white” bathrooms. The 1970s, the women’s movement made bathrooms a political and legal issue when employers were slow to accommodate the bathroom needs of the growing number of women who were joining the workforce. In the 1980s, the disability rights movement pushed to require the construction of buildings in ways that allowed individuals who use wheelchairs to enter and use bathrooms. During each one of these civil rights struggles, there were critics who dismissed bathroom-related advocacy by minority groups as unnecessary and even silly. A similar response is taking place today as the LGBT rights movement pushes to prohibit employment discrimination against gender identity.

FILL IN THE BLANK

A woman's place is in the________________

4. Enforcing Equal Pay Laws

The next

Equal Pay Day

is April 11, 2017

This date symbolizes

how far into 2017

women must work

to earn what men earned

in 2016.

Enforcing Equal Pay Laws

• EEOC targeting compensation systems and practices that discriminate based on gender

• Directed investigations and Commissioner Charges will be encouraged to facilitate enforcement

Enforcing Equal Pay Laws

Commission Activities

• White House Inter-Agency Equal Pay Task Force

• Agency has increased directed investigations and monetary resolutions since 2009

Preserving Access to The Legal System

Preserving Access

• EEOC will target policies and practices that: – discourage or

prohibit individuals from exercising their rights, or

– impede EEOC’s investigative and enforcement efforts

These include: • Retaliatory actions • Overly broad waivers • Settlement provisions

that prohibit filing charges with EEOC or providing information for an investigation or prosecution of employment discrimination

• Failure to retain records required by EEOC regulations

Preventing Harassment: Systemic Enforcement &

Targeted Outreach

Secret Deal?

Memorandum of Understanding

• EEOC has signed MOUs with a number of consulates and tribes.

• Publicized in news releases and on website.

• Fosters cooperation and education regarding workplace discrimination.

March 6, 2014: EEOC issues technical assistance publications on

RELIGIOUS GARB & GROOMING

in the workplace.

Title VII: Prohibition Against Discrimination Based on Religious Garb & Grooming

Section 703: It is unlawful for covered entities to discriminate against an employee or applicant for employment because of religion.

Section 701(j): The term religion includes all aspects of religious observance, practice and belief, unless an employer shows that it cannot reasonably accommodate the employee’s practice without undue hardship on the conduct of the business.

What Is a “Garb and Grooming” Practice?

Wearing religious clothing or articles

e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross

Observing a religious prohibition against wearing certain garments

• e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman's practice of not wearing pants or short skirts

Adhering to shaving or hair length observances

• e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)

Wearing a religious marking

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EEOC v. Abercrombie (decided June 1, 2015)

EEOC v. Abercrombie (decided June 1, 2015)

In an 8-1 decision, the Court agreed with the EEOC that an employer violates Title VII when a motive for not hiring an applicant is to avoid providing religious accommodation.

Title VII’s “intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge … the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

one person’s free speech is another person’s loud-mouthed bullying.

Remember that you while you are entitled to your opinions, you also are entitled to keep them to yourself.

Cliché or not, you can agree to disagree.

If staff meetings turn into a snarly spat about politics, bosses should steer back to work issues.

Know your audience .

Deflect arguments with “strategic ambiguity.” This allows people to take a stand without being an advocate

Interestingly, people who are very comfortable about talking may not ask what you think.

Be diplomatic. Scoring a “win” in a debate is not worth

sacrificing a good relationship with a co-worker.

Use humor to de-escalate a discussion — and be certain that your quip is not done at someone else’s expense.

Remember — your voice is more effective at the polls than in the office.

100

100 days after closure

*Click on “Show Full Process” to see Process Flow Chart 101

Cat’s Paw Theory

Joe Bontke EEOC Houston Outreach Manager and Ombudsman

713 651 4994 office 713 907 2855 cell tweeter @joebontke joe.bontke@eeoc.gov or www.eeotraining.eeoc.gov