Travis M. NicholsonOutreach and Education Coordinator

EEOC Charlotte District Office704.954.6425

travis.nicholson@eeoc.gov

EEOC Update

The EEOC is THE key civil rights agency responsible for enforcing federal laws that

prohibit employment discrimination.

EEOC Mission Statement

To STOP and REMEDYunlawful employment discrimination

What’s Going on at the EEOC?• Website Updates

– Youth at Work– Small Business Resource Center

• Strategic Enforcement Priorities– Harassment– Retaliation– Systemic Investigations

• Collecting Pay Data

SEP #1 - Eliminating Barriers to Recruitment and Hiring:The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.

SEP #2 - Protecting Immigrant, Migrant and Other Vulnerable Workers:The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

SEP #3 - Addressing Emerging and Developing Issues: • Disability• Pregnancy• LGBTThe EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.

SEP #4 - Enforcing Equal Pay Laws:The EEOC will target compensation systems and practices that discriminate

based on gender.

SEP #5 - Preserving Access to the Legal System:The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.an outreach campaign aimed at educating employers and employees will greatly deter future violations.

SEP #6 – Preventing Harassment Through Systemic Investigations and Targeted Outreach:Harassment is one of the most frequent complaints raised in the workplace. Harassment claims based on race, ethnicity, religion, age and disability combined significantly outnumber even sexual harassment claims in the private, public, and federal sectors. The Commission believes a more targeted approach that focuses on systemic enforcement and an outreach campaign aimed at educating employers and employees will greatly deter future violations.

Use of Criminal Conviction Records in Hiring:

• Validated policy under the Uniform Guidelines on Employee Selection Procedures. If relevant data is available and validation is possible. 29 C.F.R. Part 1607

• Targeted Screen with an Individualized Assessmentprocess. – Established by Green v. Missouri Pacific Railroad, 1977– Screening policies or practices that use the GREEN factors:

1. The nature and gravity of the offense or conduct.2. The time elapsed since the offense, conduct, and/or

completion of the sentence, and3. The position held or being sought.

What Does the Future Hold?• Pay Data?• Big Data?

• One of your employees informs you that they are transgender and would like to discuss transitioning in the workplace

• You have general awareness that some of your employees have expressed views that suggest they have some level of discomfort with transgender individuals. One employee has made statements that they are opposed to working with transgender individuals

LGBT Protections in the Workplace:

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

In 2012, the EEOC held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is prohibited under Title VII. SeeMacy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). The Commission has also held that discrimination against an individual because of that person's sexual orientation is discrimination because of sex and therefore prohibited under Title VII. See David Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

What is Retaliation?

• Retaliation occurs when employer takes a materially adverse action because an applicant or employee engaged in a protected activity

OR

• An employer maintains some practice or policy which discourages “chills” individuals from exercising their EEO rights. [SEP #5]

FY 2005

FY 2009

FY2010

FY 2011

FY 2012

FY 2013

FY 2014

FY 2015

Total Charges 75,428 93,277 99,922 99,947 99,412 93,727 88,778 89,385

Race 26,740 33,579 35,890 35,395 33,512 33,068 31,073 31,027

Retaliation 22,278 33,613 36,258 37,334 37,836 38,539 37,955 39,757

Race % 35.50% 36.00% 35.90% 35.40% 33.70% 35.30% 35.00% 34.70%

Retaliation % 29.50% 36.00% 36.30% 37.40% 38.10% 41.10% 42.80% 44.50%

Proving a claim of retaliation: • individual engaged in protected activity;

• employer took a materially adverse action; and

• retaliation caused the employer's action

• More likely than not, that discrimination occurred

The employer does not have to DISPROVE discrimination occurred

What is Protected Activity – Participation:

having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. Participation may include, for example, filing or serving as a witness in an administrative proceeding or lawsuit alleging discrimination

• EEOC’s view: this protection extends to participation in employer's internal EEO complaint process, even if no EEOC charge filed yet

• Rule applies even if underlying discrimination allegation is unsuccessful or untimely

• EEOC’s view: this protection applies whether or not EEO allegation is based on a reasonable, good faith belief that a violation occurred

What is Protected Activity – Opposition:

Opposing conduct that is unlawful by an EEO law. This broadly includes the many ways in which an individual may communicate explicitly or implicitly opposition to perceived employment discrimination. The manner of opposition must be reasonable, and the opposition must be based on a reasonable good faith belief that the conduct opposed is, or could become, unlawful.• Complaining or threatening to complain about alleged discrimination

against oneself or others;• providing information in an employer's internal investigation of an

EEO matter;• refusing to obey an order reasonably believed to be discriminatory;

What is Protected Activity – Opposition (cont):

• advising an employer on EEO compliance;• resisting sexual advances or intervening to protect others;• passive resistance (allowing others to express opposition);• requesting reasonable accommodation for disability or religion;• complaining to management about EEO-related compensation disparities; or• talking to coworkers to gather information or evidence in support of a

potential EEO claim

Third Parties

If employer takes an action against someone else, such as a family member or close friend, in order to retaliate against an employee, both individuals would have a legal claim against the employer under the EEO laws.

Compensation and Protected Activity:

Complaining or asking about compensation may constituteprotected opposition under EEO laws

• When an employee communicates to management or coworkers tocomplain or ask about compensation, or otherwise discusses rates ofpay, the communication may constitute protected opposition underthe EEO laws, making employer retaliation actionable based uponthe facts of a given case.

• employer “code of conduct” prohibiting discussions of pay would notinsulate employer from liability for EEO retaliation

• Joe was at work and having a conversation with his managers and one made a comment that Joe was a typical liberal and referred to him as a hippie throughout the rest of the shift

• The next day Joe told his managers that he did not appreciate the comment , and that he expected his managers would model better behavior

• Joe is later given poor marks on his monthly performance report and subsequently discharged

Legitimate Nondiscriminatory Reasons for a Materially Adverse Action:

• Employer was not aware of the protected activity.• poor performance;• inadequate qualifications for position sought;• qualifications, application, or interview performance inferior to the selectee;• misconduct (e.g., threats, insubordination, unexcused absences, employee

dishonesty, abusive or threatening conduct, or theft); and• reduction in force or other downsizing• Similarly-situated applicants or employees who did not engage in protected

activity were similarly treated• Where the “but-for” causation standard applies, evidence the challenged

adverse action would have occurred anyway

What is NOT Materially Adverse?

Petty slight, minor annoyance, trivial punishment, or any other action that is not likely in the circumstances to dissuade an employee from engaging in protected activity

• Temporarily transferring an employee from an office to a cubicle not materially adverse occasional brief delays by employer in issuing

• refund checks to employee that involved small amounts of money not materially adverse

• Marjorie filed a complaint that her manager made a sexually suggestive comment to her. The employer initiated an investigation and assigned her to another manager in the same dept / same shift

• The investigation supported her allegation, her former manager was counseled, and she was reassigned permanently to the new manager

• Marjorie felt that the employer’s actions did not go far enough to protect her because the two managers are friends. She was regularly combative with her new manager, challenged him when he gave her feedback and complained to HR that her new manager was being retaliatory

• She routinely makes statements to her co-workers that her new manager is watching her because she got his friend in trouble, and has asked co-workers to let her know if her manager goes in her desk

Retaliation Laws are NOT a Shield for Poor Performance or Misconduct:• Even though anti-retaliation laws are very broad, employers remain

free to discipline or terminate employees for poor performance or improper behavior, even if the employee made an EEO complaint.

• Whether employer's action was motivated by legitimate reasons or retaliation will depend on the facts of the case.

Compliance Tip: If a manager recommends an adverse action in the wake of an employee's filing of an EEOC charge or other protected activity, the employer may reduce the chance of potential retaliation by independently evaluating whether the adverse action is appropriate.

Harassment

• Harassment is a form of unlawful employment discrimination. Harassment involves unwanted and unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.

• The laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit; or opposing employment practices that they reasonably believe discriminate against individuals in violation of these

What Is NOT Harassment?

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people

https://www.eeoc.gov/laws/types/harassment.cfm

https://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm

Bullying / Harassment

Harassment Bullying

• Blurring of work / social boundaries• Gossip• Excluding employees• Posting videos / photos without permission• NSFW content• Disclosure of protected status

A high level manager is well known for screaming and yelling at his staff with little or no provocation, often using profanity and frequently berating them in public. The three women who work with him describe incidents like this:• “The manager suddenly stood up and screamed at me… that I was f***ing

up everything in the program…I mean, he just went ballistic.”

• “At my evaluation conference, he began by yelling. He started hurling accusations at me. When I tried to interject, he continued yelling, while shaking his fist and slamming a table. He was about two feet from my face and then he lunged across the table at me, fast, … I feared that he would strike me.”

• “He is constantly yelling and the way he literally stomps up and down the hallway… the anger in his face. The red skin and the - - pointing the fingers and just being angry… it’s like working with a ticking time bomb because you’re sitting by and you’re waiting for your turn to be next.

EEOC & Christopher et al v. National Education Assoc.-Alaska and National Education Association (Civil Action No. A01-0225-CV (JKS))

• $750,000 in remedial relief• review their employment policies and provide effective means to

address discrimination complaints• Educate employees about their rights and responsibilities in the

workplace

NOTE: NEA-AK subsequently paid $170,000 and provided other relief to settle a second federal lawsuit for this same harasser

EEOC Select Task Force on Harassment Co-Chairs

CommissionerVictoria Lipnic

CommissionerChai Feldblum

Risk Factors for Harassment:• Homogenous Workforce• Coarsened Social Discourse Outside Work• Workforce with Many Young Workers• Workplaces with “High Value” Employees• Workplaces with Significant Power Disparities• Workplaces Which Rely on Customer Service / Client

Satisfaction• Isolated / Decentralized Workplaces

• https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_Toc453686305

Key Findings:• It Starts at the Top - Leadership and Accountability Are

Critical• Training Must Change

Stay Up-to-Date on the Latest EEOC News:

www.eeoc.gov

@EEOCNews@chaifeldblum@EEOCCharlotte

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