The April 2013 issue of Take 5 was written by David W. Garland,  Chair of Epstein Becker Green’s Labor and Employment Steering Committee and a Member of the Firm in the New York and Newark offices.

In it, he summarizes five recent labor and employment actions that employers should consider:

  1. EEOC Releases Letter Addressing Wellness Programs and Reasonable Accommodation Obligations
  2. Paying Interns May Not Be Enough to Stave Off Wage and Hour Claims
  3. House Committee Votes Out Bill Prohibiting NLRB from Acting Without a Quorum
  4. New York City Human Rights Law Expanded to Prohibit “Unemployment” Discrimination
  5. New Jersey May Become the Latest State Law Banning Employers from Requesting Social Media Passwords

Click here to read the full version on ebglaw.com

by Anna A. Cohen and Desiree E. Busching

On April 20, 2012, in a noteworthy decision, the Equal Employment Opportunity Commission (“EEOC”) ruled that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects transgender individuals from disparate treatment. Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751 (EEOC, Apr. 20, 2012).  The case therefore opens up a new protected category which, while already recognized under many state and local anti-discrimination statutes and by some federal courts, had not previously been formally recognized by the EEOC.  Employers may want to consider updating employment policies, such as anti-discrimination policies, to include “transgender status” or “gender identity” as protected categories (if they have not already done so because of applicable state or local laws) and to train managers not to discriminate, harass or retaliate against employees or applicants based on transgender status or gender stereotyping.

The Case

Mia Macy (“Macy”), a police detective, applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).  Macy interviewed for the position by telephone and was promised the position pending completion of a background check.  A few months later, Macy informed the third-party contractor responsible for filling the position and performing her background check that she changed her name and gender (from male to female) and requested that the contractor inform ATF of these changes.  Five days later, Macy received an e-mail stating that due to federal budget reductions, the ATF position was no longer available.  Macy later learned that the position had not been cut, but had been offered to another candidate.

Complaint of Discrimination

Macy filed a complaint with the EEO officer at the ATF alleging discrimination on the basis of gender identity stereotyping.  The ATF interpreted Macy’s complaint to encompass a gender discrimination claim and a gender identity stereotyping claim.  With respect to the gender discrimination claim, the ATF followed the Department of Justice’s (“DOJ”) policy of processing the claim through the EEOC, which provides for remedies pursuant to Title VII.  With respect to the gender identity stereotyping claim, the ATF processed it through a separate DOJ process that allows for fewer remedies than Title VII and does not include the right to request a hearing before an EEOC Administrative Law Judge or the right to appeal the final DOJ decision.

Appeal to the EEOC

Macy appealed to the EEOC the ATF’s decision to process her gender identity claim separately and requested that the EEOC adjudicate the claim that she was discriminated against on the basis of “sex stereotyping, sex discrimination based gender transition/change of sex, and sex discrimination based gender identity.”  In its decision to process the entire complaint pursuant to Title VII, the EEOC noted that the Supreme Court has held that Title VII bars not just discrimination based on biological sex, but also gender stereotyping – in other words, failing to act and appear according to expectations defined by gender – and that the terms “gender” and “sex” are often used interchangeably to describe discrimination under Title VII.  See Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989).

Although most of the federal circuit courts have recognized that gender stereotyping constitutes discrimination prohibited by Title VII, this decision by the EEOC is significant.  Other than a proposed amicus brief submitted by the EEOC to the court in the Western District of Texas on October 17, 2011 in Freedom Buick GMC Truck, No. 07-115 (W.D. Tex. Oct. 17, 2011) (the judge denied as moot the EEOC’s motion for leave to file an amicus brief), this is the first case in which the EEOC has expressly adopted the position that disparate treatment of an employee because he or she is transgender is discrimination “because of . . . sex” under Title VII.

Now, because of this decision, transgender employees who experience workplace discrimination can file a discrimination charge with the EEOC at any of its 53 field offices.  If the allegations are found to have merit, employees will be entitled to remedies pursuant to Title VII, including hiring, reinstatement, and back pay.  In addition, the EEOC may bring lawsuits directly in court against employers it has determined have discriminated, harassed, or retaliated against transgender employees or applicants.

by Jeffrey M. Landes, Susan Gross Sholinsky, and Jennifer A. Goldman, with Teiko Shigezumi

The On April 25, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued an enforcement guidance document titled “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. (the “Guidance”), with respect to employers’ use of arrest and conviction information in connection with employment decisions.

Disparate Treatment v. Disparate Impact

Although Title VII of the Civil Rights Act of 1964 (“Title VII”) does not prohibit employers’ use of criminal background checks, the Guidance reaffirms the EEOC’s longstanding position that employers may violate Title VII if they use criminal background information improperly. The Guidance, which updates and consolidates existing EEOC guidance documents on the subject that have previously been left unchanged since 1990, focuses on employment discrimination based on race and national origin.

According to the EEOC, there are two ways in which an employer’s use of criminal history information may violate Title VII. First, Title VII prohibits employers from engaging in “disparate treatment” discrimination – that is, treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin. Second, even where employers apply a criminal record exclusion under a neutral policy (e.g., uniformly excluding applicants based on certain criminal conduct), the exclusion may still operate to disproportionately and unjustifiably keep out people of a particular race or national origin. This is referred to as “disparate impact” discrimination. If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

Read the full advisory online

by Amy J. Traub, Anna A. Cohen, and Jennifer A. Goldman

Effective April 3, 2012, the Equal Employment Opportunity Commission (“EEOC”) extended its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act to employers covered by Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). The burden on employers to comply with the recordkeeping requirements under GINA will likely be minimal, as employers should already have recordkeeping policies in effect for personnel and other employment records pursuant to these and other employment laws with the same or more stringent requirements. This Act Now Advisory should serve as a reminder of those recordkeeping requirements, which now apply under GINA as well.

Read the full advisory online

By Lauri F. Rasnick and Margaret C. Thering

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The Equal Employment Opportunity Commission (“EEOC”) has once again turned its focus to caregiver discrimination.  On February 15, 2012, for the first time in nearly 30 years, the EEOC held a meeting about caregiver and pregnancy discrimination.  As “caregivers” are not specifically included as a “protected category” under any federal law, the EEOC discussed the various laws which would possibly prohibit certain caregiver discrimination, such as the Pregnancy Discrimination Act, the Americans with Disabilities Act and Amendments Act, and the Family Medical Leave Act.  The EEOC specifically discussed accommodating pregnant women under these laws (including light duty and modified work), lactation accommodation, EEOC enforcement of these laws, flexible schedules, paid time off, pay issues, eldercare, and the role of unions in the context of the Pregnancy Discrimination Act.

While the EEOC’s historic meeting was the first of its kind, the topic is not new to the EEOC.  In 2007, the EEOC issued enforcement guidance pertaining to caregiver discrimination.  In 2009, it released a best practices guide which it revised and updated 2011.

Why all the attention?

Some of the reasons for the increased attention which were provided at the EEOC’s meeting included:

  • More women in the workplace:  According to the Bureau of Labor Statistics, women currently make up 47% percent of the nation’s workforce.
  • Unequal treatment of caregivers:  Testimony was presented that there is a measurable “motherhood wage penalty” of as much as 5% per child, even when controlling for education, experience, and other factors known to affect wages.
  • More claims: The Center for WorkLife Law documented an approximate 400% increase in caregiver discrimination lawsuits between 1999 and 2008.
  • Men speaking out:  Males who believe they have been treated unfairly because of caregiver responsibilities are becoming more vocal in asserting claims

What to do?

The recent attention to caregiver discrimination sends a message to employers that this is an issue that needs to be on their radar.  In light of the recent focus on caregiver discrimination and the EEOC’s published “best practices”, employers should:

  • Re-evaluate procedures and policies regarding promotion, hiring, pay, attendance, pregnancy and other family related leave to determine whether such policies and procedures could have an adverse impact on caregivers.
  • Consider including provisions in EEO policies regarding “caregiver” discrimination, including definitions of “caregivers,” possible examples of caregiver discrimination, and a prohibition on retaliation for employees making caregiver discrimination complaints.
  • Ensure that any discrimination complaint procedure applies to complaints of caregiver discrimination.
  • Thoughtfully consider flexible work arrangements and whether there are flex-time options that can be offered to employees.
  • Engage in and document an interactive process when evaluating possible accommodations for individuals seeking accommodations for pregnancy or caregiver responsibilities.
  • Regularly train managers and employees to make sure that they understand their obligations as it relates to caregiver discrimination.
  • Document legitimate business reasons when denying certain accommodations or taking employment actions.
  • Ensure that policies prohibiting discrimination against caregivers and providing for accommodations for caregivers apply equally to both sexes.

Undertaking the above steps will help employers prepare for the EEOC’s continued focus on these issues.  For more information please see our earlier client alert on how to prevent discrimination against caregivers.

by Ian G. Nanos

The Equal Employment Opportunity Commission (“EEOC”) recently issued its Performance and Accountability Report for Fiscal Year 2011 As reported by the EEOC, 2011 was a record year.  A quick review of these highlights, as well as the pending docket, reveals a growing trend and employers should pay attention.

First the highlights.  During FY 2011, the EEOC received a record number of discrimination charges – nearly 100,000 against private sector employers alone.   More importantly, the EEOC also recovered a record $364 Million through administrative enforcement.  Even with this high volume of new charge activity, the EEOC made a lot of progress closing cases – as one could expect given the record high recovery – and managed to reduce its charge backlog by 10%.  This reduction is also a significant development because the EEOC has not been able to reduce its pending charge backlog from one year as compared to the previous year since it did so back in FY 2002.

Employers should not let any of this give the wrong impression, however, because the EEOC still has over 78,000 pending charges at the close of the fiscal year.  An analysis of the types of cases that were closed, as well as those that are still pending, reveals a continuing trend: the EEOC’s focus on its Systemic Program.  The EEOC Systemic Program, began as an initiative in 2006 aimed at making it an agency-wide priority to identify, investigate and, if necessary, litigate claims of systemic discrimination affecting large classes of individuals.

As of the close of the Fiscal Year, September 30, 2011, the EEOC had 580 systemic investigations under way involving more than 2,000 charges.  The EEOC also had 443 cases on its active docket, 63 of which involve challenges to alleged systemic discrimination.

What does this mean for employers?

As underscored by the FY Report, success for the EEOC is measured in terms of both monetary recovery as well as the volume of case resolution. This becomes particularly important as the EEOC faces a potential budget cut and may see a reduction in its resources, which will force the EEOC to become more selective in both case assessment and selection.

The EEOC is clearly busy, but it will continue to align its resources to pursue enforcement initiatives in areas where it believes it can achieve those monetary results, including through settlement or conciliation.  Employers should be aware of the EEOC’s continued emphasis on its systemic initiatives and be prepared to act if the EEOC begins to show an interest.

by Christina J. Fletcher

The Equal Employment Opportunity Commission (“EEOC”) has increased its efforts to encourage large corporations to enter into Nationwide Universal Agreements to Mediate (UAM).  To date, more than 200 private-sector employers, including several Fortune 500 companies, have entered into UAM agreements with the EEOC at the national level.  Additionally, EEOC district offices have entered into 1,743 mediation agreements with employers at the local level.

The EEOC’s focus on UAMs, which apply to individual-charges of discrimination, but not to class and systemic charges, is aligned with the EEOC’s publicly stated priority of combating systemic discrimination.  If more individual charges can be resolved through mediation, then the agency can focus its limited litigation resources on larger-scale, systemic pattern and practice cases.

The UAMs provide that any eligible charges of discrimination filed against the employer with the EEOC will automatically be referred to the EEOC’s mediation unit.  There, the parties will attempt to resolve the workplace dispute before the EEOC commences an investigation.  The agreements require companies to designate a corporate representative to handle all inquiries and other logistical matters related to potential charges to facilitate prompt scheduling of the matter for mediation.

The EEOC touts the benefits of UAMs for employers.  According to Nicholas Inzeo, Director of the EEOC’s Office of Field Programs, “[n]ationwide mediation agreements like this are a classic win-win.  []UAMs are a non-adversarial and efficient way for companies to handle discrimination charges using the EEOC as a partner and advisor.  EEOC mediation encourages a positive work environment, and the company saves time and money.  Everyone benefits.”  The EEOC reports that it conducts approximately 12,000 mediations annually; resolves about 70% of those charges; and in 13% to 20% of those matters, the settlement involves a non-monetary resolution.

Fortune 500 employers that have signed a UAM describe the appeal of the program as highlighting corporate commitment to diversity and equal employment opportunity, developing a stronger working relationship with the EEOC and demonstrating to employees that the company wishes to effectively and fairly resolve employee complaints.  UAMs are confidential unless an employer has agreed to make the agreement public.  A list of employers who have agreed to publicize their UAMs is available here.

One significant drawback of the UAM for employers is that the charging party is not required to participate in mediation and can opt-out, sending the charge to the enforcement unit for investigation.  In addition, class and systemic charges, charges filed under the Genetic Information Non-Discrimination Act, and those filed solely under the Equal Pay Act are all ineligible for mediation under the UAMs.  The EEOC also has the discretion to withhold charges from mediation in cases in which it decides that the public interest would be served by an investigation.

As the EEOC pushes employers towards embracing the UAM model, employers will need to weigh the costs and benefits of such a blanket agreement to mediate nearly all charges to determine whether it makes sense for their company.

At the recent ALI-ABA program on Advanced Employment Law and Litigation, two high level officials of the Equal Employment Opportunity Commission spoke on the major issues that will face employers at their agency this year.

One emphasis will be in the field of disability discrimination. The EEOC has issued new regulations which auger an increase in claims and cases in this area.  The definition of disability is now so broad that there may be few employees who do not reach that threshold, whether the disability is temporary, or the employee has recovered or is “regarded as” having the disability.  The emphasis for employers will be on whether the alleged victim can perform the essential functions of the job and what reasonable accommodation can be made to allow him or her to qualify for the position.  Employers are well advised to pay strict attention to job descriptions to identify the essential functions of each job and to engage in a discussion of what accommodations are “reasonable” before rejecting an applicant with a disability or refusing to make a particular accommodation on the grounds that it is not reasonable. A comprehensive analysis of the major changes in ADA enforcement can be found in the firm’s Act Now Advisory.

The EEOC will also be paying special attention to discrimination in hiring as the job market improves.  Thus, another major push will follow from the EEOC’s conclusion that credit checks can lead to class-wide disparate impact because minorities and women may have more credit problems than others and that creditworthiness is not a good predictor of qualification for the vast majority of jobs or of threats to the employer which would warrant their exclusion.  See the firm’s Act Now Advisory for more details.  (Several states have already passed or are considering legislation that substantially limits employers’ ability to base employment decisions on credit reports.)  

Another area the EEOC will be examining is whether being out of work is a proper criteria for rejecting applicants, on the theory that minorities and women as a group may have been more adversely affected by layoffs in this recession.   This theory may be bolstered by statistics that unemployment rates for white males may be significantly lower than the unemployment rates for minorities and women

Finally, the EEOC will be looking at English-only rules in non-English speaking work forces. The test here will be whether speaking English is necessary within certain areas of an employer’s operation, such as public areas where employees interact with patrons.  The EEOC will likely view with suspicion disciplinary action against employees for speaking a native language to co-workers.