September 2015 Office of Legal Counsel

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Overview of the EEOC

Enforcement Data

Title VII – Recent Cases ◦ Religious Accommodation

◦ Protection for LGBT Workers

◦ Protecting immigrant, migrant, and other vulnerable workers

◦ Harassment

◦ Pregnancy Discrimination

ADA – Wellness NPRM

GINA – Recent Cases

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Established by Title VII of the Civil Rights Act of 1964.

Independent agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.

Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases) as well as labor unions and employment agencies.

The statutes EEOC enforces protect all workers in the U.S. regardless of their immigration status or work authorization.

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Fiscal year: 2014 2013 2012

◦ Total charges: 88,778 93,727 99,412

Retaliation: 37,955 38,539 37,836

Race: 31,073 33,068 33,512

Sex/Gender: 26,027 27,687 30,536

Disability: 25,369 25,957 26,379

Age: 20,588 21,396 22,857

National Origin: 9,579 10,642 10,883

Religion: 3,549 3,721 3,811

Equal Pay Act: 938 1,019 1,082

GINA: 333 333 280

Relief secured in the FY2014 administrative enforcement process: $296.1 million

Relief secured through litigation in FY2014: $22.5 million

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EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015)

◦ Samantha Elauf, a practicing Muslim who wears a headscarf, applied for a position in an Abercrombie & Fitch clothing store. Although qualified, she was not hired because her headscarf violated the company’s “Look Policy.”

◦ The EEOC sued Abercrombie on Elauf’s behalf, claiming that its refusal to hire Elauf violated Title VII.

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

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Ervington v. LTD Commodities, LLC, 555 Fed.Appx. 615 (7th Cir. 2014)

◦ Vera Ervington was discharged after handing out bags to co-workers containing candy and pamphlets known as “gospel tracts” at a work Halloween celebration. Some tracts negatively depicted Muslims and Catholics and stated that they would go to hell.

◦ Ervington claimed proselytizing was part of her religious practice, and the company was obligated to accommodate her communications to co-workers.

◦ Court upheld the discharge because Ervington had violated the company’s anti-harassment policy. The court agreed with the company that it would pose an undue hardship to accommodate offensive or unwelcome communications that potentially subjected others to religious harassment.

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EEOC v. Consol Energy, Inc. and Consolidation Coal Co., (N.D. W.V., jury decision August 2015)

◦ Beverly R. Butcher, Jr. worked as a general inside laborer at a mine in Mannington, W.V. for over 35 years when the company decided to use biometric hand scanners to track time and attendance.

◦ Butcher repeatedly informed managers that submitting to the scan violated his religious beliefs as an Evangelical Christian. The company denied his requests to consider alternative means of tracking his time and attendance.

◦ EEOC charged that Butcher was forced to retire due to the company’s refusal to provide a reasonable accommodation.

◦ Jury returned a verdict finding in favor of EEOC awarding $150,000 in compensatory damages. The company was also ordered to pay $436,860.74 in back pay and front pay for the Title VII violations found by the jury, subject to a 3-year injunction, and ordered to provide training on religious accommodations.

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Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012)

◦ Discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex in violation of Title VII.

Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015)

◦ Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else).

◦ Restrictions on transgender female’s ability to use a common female restroom facility constituted disparate treatment on the basis of sex.

◦ The restroom restrictions combined with hostile remarks, including intentional pronoun misuse, created a hostile work environment on the basis of sex.

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Baldwin v. Dep’t of Transportation (FAA), EEOC Appeal No. 0120133080 (July 15, 2015)

◦ FAA declined to process non promotion case under its Title VII procedures and instead applied its separate internal procedures for investigating complaints of sexual orientation discrimination on the grounds that Title VII does not cover discrimination based on sexual orientation.

◦ A claim of sexual orientation discrimination is per se a claim of sex discrimination under Title VII because:

It necessarily entails treating an employee less favorably because of the employee’s sex;

It is associational discrimination based on sex; and/or

It necessarily involves discrimination based on gender stereotypes.

◦ DOT/FAA ordered to accept the claim and to process it under the standard procedures for a complaint of sex discrimination by a federal employee.

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Recent EEOC Litigation:

◦ EEOC v. Deluxe Financial Servs Corp., (D. Minn., filed June 4, 2015): EEOC alleged that a check-printing and financial services corporation refused to allow the charging party to use the women’s restroom after she began to present at work as a woman and subjected her to a hostile work environment in violation of Title VII.

◦ EEOC v. Lakeland Eye Clinic, P.A. (M.D. Fla., filed Sept. 25, 2014, settled April 9, 2015): EEOC sued an organization of health care professionals alleging that it discriminated based on sex by firing an employee because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer's gender-based expectations, preferences, or stereotypes in violation of Title VII. Defendant agreed to settle the case by entering into a two year consent decree which includes injunctive relief and $150,000 in monetary damages.

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“What You Should Know About EEOC and the Enforcement Protections for LGBT Workers” available at: http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.

“Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace” available at: https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/.

“Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment: A Guide to Employment Rights, Protections, and Responsibilities” available at: http://www.opm.gov/LGBTGuide.

◦ Resource guide on LGBT discrimination for federal workers jointly issued in 2015 by OPM, EEOC, OSC, and the MSPB.

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Protecting immigrant, migrant, and other vulnerable workers is one of the priorities identified in the EEOC’s Strategic Enforcement Plan.

EEOC v. Hamilton Growers (Settled Dec. 13, 2012)

◦ EEOC alleged that the company unlawfully fired virtually all American workers while retaining workers from Mexico during the 2009-2011 growing seasons. The EEOC also alleged that at least 16 Mexican-American workers were fired based on race/national origin and that American workers were provided lesser job opportunities than workers in the H-2A guest worker program.

◦ Defendant agreed to settle the matter by paying $500,000, and among other relief, exercise good faith in hiring and retaining qualified workers of American national origin and African-American workers for all farm work positions.

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EEOC v. Hill Country Farms, Inc. (S.D. Iowa, jury decision May 1, 2013)

◦ EEOC alleged that for years Hill County Farms, doing business as Henry's Turkey Service, subjected a group of 32 men with intellectual disabilities to severe abuse and discrimination from 2007-2009, after 20 years of similar mistreatment.

◦ Jury awarded EEOC damages totaling $240 million - the largest verdict in EEOC’s history.

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EEOC v. Global Horizons, Inc., 7 F. Supp. 3d 1053 (D. Haw. Mar. 19, 2014)

◦ Thai workers at Global Horizons were paid less than non-Thai workers, made to work less desirable and more demeaning jobs than non-Thai workers, and subjected to physical violence, threats of being deported, and heavy surveillance.

◦ Held: The employer’s standard operating procedure was to engage in a pattern or practice of unlawful discriminatory employment practices against Thai farm workers.

Global Horizons was subsequently ordered to pay $8.7 million in damages to 82 victims.

◦ Five farms that used Global Horizons’ services settled, agreeing to pay a total of $3.6 million to over 500 victims and to make extensive policy changes to safeguard the rights of future migrant workers.

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EEOC v. Moreno Farms, Inc. (settled Sept. 2015)

◦ EEOC alleged that two sons of the owner of Moreno Farms and a third male supervisor engaged in graphic acts of sexual harassment against female workers, including regular groping and propositioning, threatening female employees with termination if they refused the sexual advances, and attempting to rape, and raping, multiple female employees. Five women were fired for opposing the harassment.

◦ On September 10, 2015, the jury returned a unanimous verdict awarding over $17 million to the five female farmworkers who intervened in EEOC’s suit.

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Preventing workplace harassment through systemic litigation and investigation is one of six national priorities identified in the EEOC’s Strategic Enforcement Plan.

In March 2015, the EEOC announced the formation of a Select Task Force that will examine the problems of workplace harassment and look for ways in which it might be prevented and addressed.

◦ Co-chaired by EEOC Commissioners Chai R. Feldblum and Victoria A. Lipnic.

◦ Comprised of 16 members, including representatives of academia and social science, legal practitioners, employee and employer advocacy groups, organized labor, and others.

◦ Will hold meetings throughout the year.

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EEOC v. Dart Energy Corp. et al, (D. Wyo., settled Dec. 2, 2014)

◦ EEOC alleged that Dart Energy and two related companies subjected employees with unlawful race and national origin harassment and retaliation. Employees referred to Hispanic, Native American, and African Americans using offensive epithets.

◦ Complaints to management were minimized or ignored, and several men were demoted or fired after filing complaints.

◦ Settled by consent decree – Dart agreed to pay $1.2 million, provide extensive training on employment discrimination laws to its employees, establish a toll-free anonymous complaint line, conduct annual surveys to ensure discrimination is not continuing, and submit to EEOC reporting requirements.

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EEOC v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015)

◦ After two female employees opposed a supervisor’s sexual harassment, the supervisor disparaged their work ethic to a higher-level official. They were terminated shortly after the meeting between the higher-level official and supervisor.

A third female employee also opposed the supervisor’s sexual advances and was terminated by the supervisor.

◦ Held: Jury verdict affirmed for EEOC (harassment and retaliation).

Employer was vicariously liable for the supervisor’s harassment because it resulted in a tangible employment action (termination).

Sufficient evidence established that the harassing supervisor influenced the other official’s decision to terminate two of the employees.

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Khan v. OneBeacon Ins. Co., 2015 WL 1475937 (D. Mass. Mar. 31, 2015).

◦ Plaintiff was called a terrorist on multiple occasions by a coworker, including in front of a large group of coworkers and managers who laughed and expressed no disapproval.

◦ The employer could be liable for the harassment of plaintiff’s coworker because the coworker was transitioning to become the head of the office and management took no action against the harassment.

◦ Summary judgment denied.

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Young v. United Parcel Serv., Inc., 135 S.Ct. 1338 (2015)

◦ Pregnancy Discrimination Act (PDA)’s second clause states that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

◦ UPS had a policy that limited light duty assignment to individuals injured on the job, those with disabilities, and those who lost Department of Transportation certification to drive commercial motor vehicles. UPS denied plaintiff, a pregnant UPS driver, an accommodation for her 20 pound lifting restriction.

◦ Holding:

The Court rejected a broad, literal interpretation of the Pregnancy Discrimination Act’s second clause.

The Court also rejected UPS’s interpretation of the second clause as only serving to clarify that discrimination on the basis of pregnancy is sex discrimination.

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Young holding (continued):

◦ The Court adopted a plaintiff-friendly version of the familiar McDonnell Douglas burden-shifting analysis in disparate treatment cases.

Plaintiff must establish a prima facie case by showing that:

1) she is a member of a protected class;

2) she sought accommodation;

3) the employer did not accommodate her; and

4) the employer accommodated other employees similar in their ability and inability to work.

An employer may then articulate a legitimate, nondiscriminatory reason for the different treatment that does not consist simply of a claim that it is more expensive or less convenient to accommodate pregnant women.

Finally, plaintiff may show that the employer’s reason is pretextual by providing sufficient evidence that the policies significantly burden pregnant employees and that the employer’s articulated reason is not “sufficiently strong.”

For example, does UPS accommodate a large % of nonpregnant workers while refusing to accommodate a large % of pregnant workers?

◦ Case remanded for evaluation of Young’s claim under the new standard.

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In June 2015, EEOC issued an updated Enforcement Guidance on Pregnancy Discrimination and Related Issues. Issues discussed in addition to the one in Young include:

◦ PDA’s application to current, past, and potential pregnancy

◦ Termination or refusal to hire someone because she is pregnant and other prohibited employment actions based on pregnancy;

◦ Application of the PDA to lactation and breast feeding;

◦ Prohibition of forced leave policies;

◦ Obligation to treat women and men the same with respect to parental leave policies; and

◦ Access to health insurance.

The Guidance, a question and answer document, and a fact sheet for small businesses is available at: http://www.eeoc.gov/laws/types/pregnancy_guidance.cfm.

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On April 20, 2015, EEOC issued a Notice of Proposed Rulemaking (NPRM) on how Title I of the ADA applies to employer wellness programs that are part of a group health plan.

Wellness program = programs and activities typically offered through employer-provided health plans to help improve employee health and reduce health care cost.

Title I of the ADA generally restricts employers from obtaining medical information from employees but allows medical exams and inquiries about health if part of a “voluntary” employee health program.

The NPRM:

◦ Clarifies that the ADA allows employers to offer incentives up to 30% of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes;

◦ Describes employer practices that are (and are not) wellness programs;

◦ Defines what it means for an employee health program to be voluntary; and

◦ Explains confidentiality requirements.

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What should employers do until a final rule is published to ensure wellness programs are in compliance with the ADA?

◦ Do not require employees to participate in wellness programs;

◦ Do not deny health insurance to employees who do not participate; and

◦ Do not take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in wellness programs or who do not achieve certain health outcomes.

Employers may choose to comply with the proposed rule, but that is not required.

Employers should continue to provide reasonable accommodations that allow employees with disabilities to participate in wellness programs and obtain any incentives offered.

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Approximately 100 cases have been filed in the federal courts, most resolved procedurally.

Recent substantive cases in the news:

◦ Lowe v. Atlas Logistics Group Retail Servs, LLC, 2015 WL 2058906 (N.D. Ga., May 5, 2015) (partial summary judgment for plaintiffs where employer required them to submit to genetic test).

◦ Lee v. City of Moraine Fire Dep’t., 2015 WL 914440 (S.D. Ohio, Mar. 3, 2015) (summary judgment for plaintiff when employer unlawfully requested genetic information during employment-related exam)

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Several cases that include a substantive discussion of GINA, misinterpret the definition of genetic information, concluding that only information that has predictive value with respect to employee’s likelihood of acquiring disease is protected by GINA.

◦ Poore v. Peterbilt of Bristol, L.L.C., 852 F. Supp. 2d 727 (W.D. Va. 2012)

◦ Conner-Goodgame v. Wells Fargo Bank, N.A., 2013 WL 5428448 (N.D. Ala. 2013)

◦ Allen v. Verizon Wireless, 2013 WL 2467923 (D. Conn. 2013)

Protected genetic information includes information about the manifestation of disease or disorder in family members, regardless of whether there is any possibility of the employee inheriting the disease or disorder at issue.

◦ This includes information about manifestation of disease or disorder in spouses and adopted children.

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EEOC policy guidance documents are available at: http://www.eeoc.gov/laws/guidance/subject.cfm

Questions?

Davis Kim

Senior Attorney Advisor

davis.kim@eeoc.gov

(202) 663-4736

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