2012 EEOC TRENDS, PRIORITIES AND UPDATES Timothy A. Riera Honolulu Local Office Director U.S. Equal...
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Transcript of 2012 EEOC TRENDS, PRIORITIES AND UPDATES Timothy A. Riera Honolulu Local Office Director U.S. Equal...
2012EEOC TRENDS, PRIORITIES AND
UPDATES
Timothy A. RieraHonolulu Local Office Director
U.S. Equal Employment Opportunity Commission
Agenda
Charge ReceiptsTrends and Priorities EEO Cases
General Counsel
P. David Lopez
THECOMMISSION
CHAIR Jacqueline A. Berrien
Commissioner Commissioner Commissioner
Constance Barker Victoria Lipnic Chai Feldblum
EEOC Charge ReceiptsNATIONAL (FY 2000 – FY 2011)
65,000
70,000
75,000
80,000
85,000
90,000
95,000
100,000
105,000
FY 200
0
FY 200
1
FY 200
2
FY 200
3
FY 200
4
FY 200
5
FY 200
6
FY 200
7
FY 200
8
FY 200
9
FY 201
0
FY 201
1
Fiscal Year (FY)
Nu
mb
er o
f C
har
ges
Retaliation 37%
Race 35%
Sex 28%
Disability26% Age
24%
NationalOrigin12%
Religion4% GINA
0.2%
0%
5%
10%
15%
20%
25%
30%
35%
40%
U.S. Charge Receipts by Type - FY 2011
NATIONAL STATISTICS FY 2011
EEOC received 99,947 private sector discrimination charges, the highest level ever received, and monetary relief obtained for victims totaled over $455.6 million ($51 million increase over FY2010.)
For the second time since the EEOC’s inception, retaliation (37%) exceeded race (35.4%) as the #1 complaint filing.
Mediation 9,831 resolutions $170+million benefits
300 lawsuits = $91 Million in relief (23 systemic and 67 multiple victims)
EEOC Strategic Plan 2012 - 2016
Strategic Law Enforcement
Education and Outreach
Efficiently Serving the Public
Systemic Program
Systemic discrimination cases are “pattern or practice, policy and/or class
cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location.”
Priority for investigations and litigation Encourage employers to engage in
proactive prevention EEOC expanded efforts to partner with
advocacy groups, state and federal agencies, employer groups, the plaintiffs’ bar and other organizations to identify and address discriminatory practices.
Systemic Program
Systemic Program
OGC priority---partnerships among the district offices-
Shift to more cases on behalf of larger groups
Fewer small cases, strategically selected to have impact beyond the named individual
More Commissioners’ Charges
Examples of Systemic Discrimination Racially discriminatory barriers in
recruiting and hiring practices Exclusion of women from traditionally male
dominated fields of work Barriers based on race, gender or national
origin to higher level positions Disability discrimination issues, including
unlawful pre-employment inquiries
Examples of Systemic Discrimination Age discrimination in reduction in force
and retirement benefits Race and national origin discrimination in
management trainee programs Compliance with customer preferences
that result in discriminatory placements or assignments.
Cases Involving Leave Policies
EEOC v. Supervalu Inc., N.D. Ill. 09-cv-05637-medical leave of absenceEEOC v. Sears Roebuck, N.D. Ill. No. 04-cv-
07282-workers’ compensation leave policyEEOC v. Verizon Comms., D. Md. No. 11-cv-
1832-no fault leave policy
Arrest & Conviction Records
EEOC updated guidance on 4/25/2012
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
Statistics on Criminal Records
Whatever statistics you look at, you
will find that Blacks and Hispanics are:
arrested,
convicted,
and sent to prison at a significantly
higher rate than Whites.
CONSEQUENTLY… …if an employer demands that all
new hires be “conviction free”…
…this policy or practice may have a DISPARATE IMPACT on both
African Americans and Hispanics.
CRIMINAL BACKGROUND CHECKS WHY DOES THE EEOC CARE?
Discrimination
based on
RACE or
NATIONAL
ORIGIN
• Intentional Discrimination - Disparate Treatment
Unintentional Discrimination – Disparate Impact
DISPARATE IMPACT Criminal Background Screening
Step 1: Did the policy disproportionately screen out applicants based on race, national origin or another protected factor?
Step 2: Is the exclusion job-related and is there a business need related to the job in question?
Common Inaccuracies in C R I M I N A L R E C O R D S
Wrong Person
Multiple Reports of the Same Incident
Uncorrected Identity Theft
Arrests Dropped For Innocence
Expunged Records Still Appear
Is There a Link Between C o n v i c t i o n a n d J o b ?
Basic question: Does a criminal record suggest an unacceptable risk?
Factors to Assess
Nature and Gravity of the Offense;
How much time has passed?
What type of job is involved?
Veterans with Disabilities 2.28.2012 EEOC updates publications on
Employment of Veterans with Disabilities Guide for Employers – compares requirements
under Americans with Disabilities Act (ADA) Uniformed Services Employment and Reemployment
Rights Act (USERRA) Guide for Wounded Veterans
11.16.2011 EEOC public meeting “Overcoming Barriers to the Employment of Veterans with Disabilities”
Small Business
EEOC Small Business Task Force• Use new technology to expand outreach• Develop targeted technical assistance and training• Aid for small businesses owned by women and
minorities• Enhance small business resources at
www.eeoc.gov
Focus: Newly-established Too small to afford lawyers or human resource
personnel
WHITE HOUSE EQUAL PAY TASK FORCE
President Obama pledged to crack down on violations of equal pay laws.
White House Administration created the National Equal Pay Task Force to address the issue and promote work-family balance for families.
The Task force calls for interagency coordination between EEOC, DOJ, DOL, and OPM
Recommendations released in July 2010 to expand coordination, collect data, undertake a public education campaign, strategize on making the federal government a model employer.
TRI-AGENCY COLLABORATION
Partnerships emphasized between: U.S. EEOC U.S. Department of Labor’s Office of Federal
Contract Compliance Programs (OFCCP) U.S. Department of Justice, Civil Rights
Division
Agency Interaction & Collaboration Memorandum of Understanding (MOU)
DFEH OFCCP (updated 11.7.2011)
Partnerships for outreach and education Employer Groups Advocacy
COMMISSION FOCUS
February 15, 2012: Commission meets on PREGNANCY & CAREGIVER DISCRIMINATION
DISCRIMINATION AGAINST WORKERS WITH CAREGIVING RESPONSIBILITIES
Changing workplace demographics
Parental/caregiver status not protected group
Unlawful where caregiver is subjected to discrimination based on sex/color/race
Unlawful under ADA if based on association with an individual with disability
Unlawful discrimination against Caregivers Treating male caregivers more favorably
than female caregivers Sex-based stereotyping of working women
Reassigning woman to less desirable projects Reducing female employee’s workload Subjective decision-making
Assumptions about pregnant workers: limiting job duties
Discrimination against working fathers Hostile work environment
RETALIATIONThompson v. North American Stainless
Regalado filed EEOC sex discrimination charge. 3 weeks after charge served, her fiancé Thompson was fired.
Thompson sued. Is an employee relative of a charging
party protected by Title VII’s anti-retaliation provision?
RETALIATION: Waiver of RightsEEOC v. Cognis Corp.
• Cognis required employees to sign agreement to never to file charges.
• Whitlow signed, but later refused to comply.
• Soon after, Whitlow was fired.• Was it retaliation to terminate an
employee for refusing to agree to unlawful terms?
MINISTERIAL EXCEPTIONEEOC v. Hosanna-Tabor
Teacher taught math, language arts, social studies, science, gym art, computers, music and a religion class 4 days for 30 minutes. Led class in prayers 3x day for 5 minutes.
Took disability leave for narcolepsy; gets full medical release; tells principal that she wants to return to work.
Board fired her because of alleged “insubordination and disruptive behavior.”
Exempt from ADA as a “ministerial employee”?
DISABILITY: HIV+ DisclosureEEOC v. C.R. England
Truck driver trainer voluntarily disclosed HIV status to HR
Did not object to the company requiring trainees to sign form “agreeing” to train with HIV+ trainer
Later fired for refusing a load and ‘deadheading’ home without proper advance notice
Was disclosure of HIV status to trainees and requiring the acknowledgement form unlawful? What was the adverse action?
TRANSGENDER: Title VIIMacy v. Holder
Police detective Macy applies for job as contract ballistics tech
After job offer, Macy tells contractor of plans to transition to female
Contractor tells ATF, ATF withdraws offer because of “budget”
ATF refuses to investigate “gender stereotyping claim”
Is gender stereotyping covered by Title VII?
GENDER IDENTITY: CORE CONCEPTS
• Gender: Social or cultural aspects of masculinity and femininity.
• Sex: A person’s anatomy. Sex terms are male, female, transsexual, and intersex. Sex is biological; social views of sex are cultural.
• Gender Identity: An individual's internal sense of being male or female. Everyone has a gender identity which may or may not be the same as her or his sex.
• Gender Expression: External characteristics and behaviors – such as dress, grooming, mannerisms, speech patterns and social interactions – that are socially identified with a particular gender.
• Sexual Orientation: Who an individual is attracted to.
TRANSGENDER (OR TRANS)
• A broad term that encompasses people who experience and/or express their gender differently from conventional or cultural expectations.
• Many transgender people desire to live life as the gender different than birth, but not all.
GENDER TRANSITION
Process of modifying one’s gender expression and/or physical characteristics to match one’s identity.
Different for everyone. Can include:• A name change• Changing clothing style• “Real Life Experience”• Counseling, hormone therapy, or
surgery
T RA N S G E N D E R COVERED BY T I T L E V I I
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)
HETEROSEXUAL (“STRAIGHT”) PERSON WITH A SEX-STEREOTYPING CLAIM
• Price Waterhouse – An “aggressive” female who talks, dresses and/or acts the way men in our society are stereotypically “supposed” to act.
• A “metro-sexual” male, who cares about his outfits, accessories and hair products.
COVERED BY TITLE VIIAS A SEX DISCRIMINATION CLAIM
L G B I N V I D U A L WITH A SEX-STEREOTYPING CLAIM
• The person does not act in line with stereotypical notions of male and female.
• A gay or bi-sexual man who walks or carries himself in an “effeminate” manner.
• A lesbian or bi-sexual woman who has very short hair and wears men’s clothes and shoes, for example.
COVERED BY TITLE VII AS
A SEX DISCRIMINATION CLAIM
TRANSGENDER INV IDUAL WITH A SEX-STEREOTYPING CLAIM
• The person does not present in line with stereotypical notions of how males / females are “supposed” to appear.
• A male to female (MTF) who dresses in women’s clothing or wears make-up or jewelry.
• A female to male (FTM) who wears shirts and ties or men’s shoes or otherwise acts “unladylike.”
COVERED BY TITLE VIIAS A SEX DISCRIMINATION CLAIM
Resources
EEOC website (www.eeoc.gov) Arrest and Court Records Enforcement Guidance:
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
Qs and As on Arrest and Court Records: http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm
OPM Guidance on the Employment of Transgender Individuals: www.opm.gov/diversity/Transgender/Guidance.asp