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EEOC Issues Broad Strategic Enforcement Plan for 2013-2016

Posted on Mon, Jan 14, 2013 @ 11:50 AM

by Jack B. HarrisonJack B. Harrison

On December 18, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) approved a Strategic Enforcement Plan for 2013-2016 (SEP).  Three of the four sitting Commissioners voted for the SEP.  These were Chair Jacqueline Berrien (D), Commissioner Chai Feldblum (D), and Commissioner Victoria Lipnic (R).  Voting against the SEP was Commissioner Constance Barker (R).

The final version of the SEP is a revised version of the draft SEP the EEOC issued on September 4, 2012.  The SEP focuses on the six high-priority target areas outlined below.  Additionally, the SEP makes it clear that the EEOC will continue its focus on increased systemic litigation and private enforcement actions.

The six items highlighted as national priorities in the SEP are:

  1. Eliminating Barriers in Recruitment and Hiring.  According to the SEP, the EEOC will focus on class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and people with disabilities.

  2. Protecting Immigrant, Migrant and Other Vulnerable Workers.  According to the SEP, the EEOC will focus on 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.

  3. Addressing Emerging and Developing Issues.  According to the SEP, the EEOC will focus on emerging issues in equal employment law.  These emerging issues will include: (1) coverage, reasonable accommodation, qualification standards, undue hardship and direct threat under the ADA; (2) accommodating pregnancy-related limitations; and (3) coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.

  4. Enforcing Equal Pay Laws.  According to the SEP, the EEOC will focus on compensation systems and practices that discriminate based on gender.

  5. Preserving Access to the Legal System.  According to the SEP, the EEOC will focus on 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.

  6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.  According to the SEP, the EEOC will focus on the pursuit of systemic investigations and litigation and on conducting a targeted outreach campaign to deter harassment in the workplace.  The EEOC is currently pursuing 62 systemic cases, roughly 20 percent of its active litigation.  The EEOC also claims to have resolved 240 systemic investigations in FY 2012, a 45 percent increase from FY 2010.  Additionally, the EEOC states that it secured $36.2 million through conciliation and pre-determination settlements in FY 2012, an amount four times greater than in FY 2011.

The SEP also encourages greater cooperation and collaboration between the agency and private attorneys in seeking to enforce federal anti-discrimination laws.  This move will allow EEOC staff to share information with individual plaintiffs and their attorneys in order "to facilitate swift enforcement and early resolution of charges."  This increased cooperation and collaboration will likely increase private enforcement litigation, which often is more costly and time consuming to employers than government enforcement.

The SEP should provide prudent employers better guidance into the EEOC’s priorities and goals over the next several years.  The guidance offered by the SEP should be used by employers and their counsel in reviewing compliance systems and eliminating any corporate weaknesses in the identified target areas. At the same time, employers must remain aware of the increased chance of encountering a systemic lawsuit or private enforcement action.

Tags: Stategic Enforement Plan, EEOC, Equal Employment Opportunity Commission

EEOC Rules: Transgendered Employees Protected From Workplace Discrimination

Posted on Fri, May 04, 2012 @ 10:23 AM

Jack B. HarrisonBy Jack B. Harrison

The Equal Employment Opportunity Commission (EEOC) recently ruled that the Civil Rights Act protects transgendered employees from discrimination in the workplace.  In the specific case, the EEOC said that Mia Macy, a transgendered woman, could proceed with a charge of gender identity discrimination against the Bureau of Alcohol, Tobacco, Firearms and Explosives. Macy claims that she was not hired by the Bureau after she announced she was transitioning from male to female.

This decision provides several takeaways that diligent employers should keep in mind when making employment decisions:

Discrimination based on gender identity equals sex discrimination—

The EEOC concluded that Title VII prohibits not just discrimination based on sex, but also on the basis of gender—for example—on the “cultural and social aspects associated with masculinity and femininity.”  Consequently, employment decisions based on the transgender status of an employee could constitute gender discrimination.

The ruling represents a change of position for the EEOC in addressing discrimination claims brought by transgendered employees—

The EEOC had previously deemed claims of discrimination based on gender identity, or the transgender status of an individual, as not being actionable under Title VII.  However, in the Macy decision, the EEOC has made clear that its decision in Macy was intended to expressly overturn those prior decisions.

Employers may need to revise workplace policies—

The Macy decision should serve as a warning to those employers who are not located in jurisdictions where gender identity was already protected prior to the Macy decision.  Those employers should give consideration as to whether their company policies and training programs should be revised to address the new risk recognized by the EEOC.

The decision affects both public and private employers—

While the Macy case involved alleged discrimination in the government sector, the EEOC’s decision was not limited solely to the public sector.  It appears that the EEOC’s decision is equally applicable to the private sector.  As a result, private sector employers should be aware that the EEOC will consider discrimination against transgender employees or applicants to be prohibited by Title VII.

Tags: Transgendered Employees, EEOC, Equal Employment Opportunity Commission

United States Supreme Court Recognizes "Ministerial Exception" To Employment Discrimination Laws

Posted on Thu, Jan 12, 2012 @ 10:47 AM

By Jack B. Harrison on January 12, 2012

On January 11, 2012, in a sweeping unanimous decision, the Supreme Court recognized for the first time a “ministerial exception” to employment discrimination laws.  The Supreme Court declared that churches and other religious groups must be free to choose and dismiss their leaders without government interference.  This decision will have significant implications for religious institutions, including schools and universities, and their employees.

The case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553, was brought by Cheryl Perich, a teacher at a Lutheran school in Redford, Michigan.  Ms. Perich claimed she was fired in retaliation for pursuing an employment discrimination claim based on a disability, narcolepsy. Ms. Perich had taught mostly secular subjects but also taught religion classes, had taken religious training in order to receive the designation of “a called teacher,” and attended chapel with her class.

The Supreme Court left open the question of exactly what employees the “ministerial exception” would apply to.  At a minimum, it would appear clear that the exception would apply not only to ministers, priests, rabbis and other religious leaders, but also teachers in religious schools with some formal religious training who teach religious subjects to students.  Justice Thomas, in a concurrence, expressed the opinion that the decision as to who was a “minister” under the exception should be left up to religious bodies.  In contrast, Justice Alito, in a concurrence joined by Justice Kagan, expressed the opinion that the exception must not be focused only on those who carry the title “minister,” as that title was primarily confined to Protestant Christian denominations, nor should it focus on ordination as the primary focus for the exception.

For employers who are religious institutions, this decision provides a powerful defense against employment discrimination actions when the employee at issue is involved in some fashion in the religious function of the institution.

Tags: EEOC, Supreme Court, Equal Employment Opportunity Commission