Tag: EEOC

EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal anti-discrimination laws, today updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” This Technical Assistance is intended to help employers address practical issues that may arise in their day-to-day operations and oversight of their employees as they return to work in the context of COVID-19. The EEOC has consistently reminded employers that the federal anti-discrimination laws continue to apply during the pandemic and that these laws do not interfere with the guidance issued by public health authorities, including the CDC.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

The EEOC’s previously issued Technical Assistance discussed critical issues such as disability-related inquiries and medical examinations, confidentiality of medical information, and hiring and onboarding during the COVID-19 pandemic. In addition, the EEOC provided detailed guidance on handling reasonable accommodations during the pandemic. In this newly issued Technical Assistance, the EEOC focuses in even further on these and related issues, and provides an analysis of common topics that many employers have been or will be facing as employees are preparing to return to work.

The updated questions and answers include topics such as: whether an employee is entitled to an accommodation under the ADA to avoid exposing a family member who is at higher risk of severe illness from COVID-19; whether reasonable accommodations are required during the process of screening employees before they enter the worksite; whether employees age 65 or older, who are at higher risk of severe illness from COVID-19, can be involuntarily excluded from the workplace based on their age; whether pregnant employees can be involuntarily excluded from the workplace due to their pregnancy and, relatedly, whether there is a right to accommodation based on pregnancy during the pandemic. In addition, the updated Technical Assistance discusses steps employers can take to prevent and address possible harassment and discrimination that may arise related to the pandemic, particularly as against employees who are or perceived to be Asian.

EEOC Technical Assistance Questions and Answers

Employers should review this newly issued Technical Assistance from the EEOC so that they are prepared to address these issues if they arise as businesses are re-opening and employees are returning to the workplace.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more on EEOC COVID-19 guidance, see the National Law Review Labor & Employment law section.

EEOC Issues ADA and Title VII Guidance for Employers on COVID-19

The Equal Employment Opportunity Commission (EEOC) recently hosted a webinar in which the agency answered questions about the applicability of the Americans with Disabilities Act (ADA) and Title VII to COVID-19-related employment actions.  This Q&A supplemented earlier guidance posted by the EEOC.

This post summarizes the guidance and takeaways from the EEOC webinar.

  • The EEOC updated its previously published guidance entitled “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act” to provide information and examples regarding COVID-19. This new guidance confirms that COVID-19 constitutes a “direct threat” and a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace.
  • Employers should follow the EEOC guidance in conjunction with the guidelines and suggestions made by the CDC and state/local health authorities.
  • The guidance also answers common employer questions about the COVID-19 pandemic, such as:

Q:     How much information may an employer request from an employee who calls in sick in order to protect the rest of its workforce during the COVID-19 pandemic?

A:    ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. Employers generally may not ask these questions of employees who are teleworking since they are not entering the workplace and do not pose a threat to others.

We note, however, that if an employee recently started teleworking, employers may want to ask the employee if they exhibited symptoms of COVID-19 before starting telework, so the employer can inform those with whom the employee had been in close contact about the potential exposure.

Q:     What if an employee refuses to answer COVID-19 related questions by the employer?

A:    The ADA allows employers to bar an employee’s physical presence in the workplace if he or she poses a threat to others. Employers should ask for the reason behind the employee’s refusal and reassure the employee if the employee is hesitant to provide this information.

Q:    When may an employer take an employee’s temperature during the COVID-19 pandemic?

A:    Generally, taking an employee’s temperature is a medical examination under the ADA. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may take employees’ temperature. However, employers should be aware that some people with COVID-19 do not have a fever, while some people with a fever do not have COVID-19.

Employers, however, are well-advised to first consult with counsel to ensure the administration of these tests stays within the guidance and does not otherwise violate applicable law.

Q:    Can an employer ask COVID-19 related questions about an employee’s family members? 

A:    This unnecessarily limits the inquiry. A better question is whether the employee has had contact with anyone diagnosed with COVID-19 or who was showing symptoms of COVID. A general question like this is more sound. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about an employee’s family members.

Q:    How are employers supposed to keep medical information of employees confidential while teleworking?

A:     The ADA requires that medical information be stored separately away from other personnel files and employee information. A supervisor who receives this information while teleworking should follow normal company procedures to store this information. If they cannot follow the procedures for whatever reason, they should make every effort to safeguard the information from disclosure (for example, do not leave a laptop open or accessible to others; do not leave notepads with information around the home, etc.).

Q:    What are an employer’s ADA obligations when an employee says he has a disability that puts him at a greater risk of severe illness if he contracts COVID and therefore asks for a reasonable accommodation?

A:    The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, this is clearly a request for a reasonable accommodation and a request for a change in the workplace. Because employers cannot grant employees reasonable accommodations for disabilities that they do not have, employers may verify that the employee has a disability, what the disability is, and that the reasonable accommodation is necessary because the disability may potentially put the individual at a higher risk for severe illness due to COVID-19.

There may also be a situation in which the employee’s disability is exacerbated by the current situation. The employer may verify this as well. Aside from requesting a doctor’s note, other options to verify an employee’s disability may be to request insurance documents or their prescription. An employer may want to provide a temporary reasonable accommodation pending receipt of the documentation.

Q:    If an employer grants telework to employees with the purpose of slowing down/stopping COVID-19 – after the public health measures are no longer necessary, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who wishes to continue this arrangement?

A:    No. Anytime an employee requests a reasonable accommodation, the employer has the right to understand and evaluate the disability related limitation and make a determination on the request. After the pandemic, a request to telework does not have to be granted if working at the worksite is an essential function of the job in normal circumstances (i.e. not during a pandemic). The ADA never requires an employer to limit the essential functions of a position, and just because an employer did this during the pandemic does not mean an employer has to permanently change the essential functions of a position, and is not an admission that telework is a feasible accommodation or that telework does not place an undue hardship on the employer.

The guidance further addresses common questions related to discrimination and harassment under Title VII, such as:

Q:     May an employer decide to layoff or furlough a pregnant employee who does not have COVID-19 or symptoms solely based on the CDC guidance that pregnant women are more likely to experience severe symptoms and should be monitored?

A:     No, because pregnant employees are protected under the Pregnancy Discrimination Act of Title VII.

Q:    May an employer exclude from the workplace an employee who is 65 or older and who does not have COVID, solely because he or she is in an age group that is at higher risk for severe illness as a result of COVID?

A:    No, age based actions are not permitted. The Age Discrimination in Employment Act prohibits discrimination against those who are 40 or older.

Q:    May an employer single out employees based on national origin and exclude them from the workplace due to concerns about possible COVID-19 transmission? May employers tolerate a hostile work environment based on an employee’s national origin or religion because others link it to the transmission of COVID-19?

A:    No, because Title VII prohibits national origin discrimination. It does not matter that it is linked to COVID-19. Employers should remind employees of anti-discrimination and anti-harassment policies and also should ensure that they are not taking employment actions based on an employee’s protected class(es).

  • An employer may make inquiries that are non-disability related to identify potential non-medical reasons for an employee’s absence or future absence. For example, an employer may ask a “yes” or “no” question that asks if the employee or someone in his or her household falls within the categories identified by the CDC for being at higher risk for severe illness if COVID-19 is contracted (such as pregnancy or being over the age of 65).
  • An employer may also screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
  • While employers may require doctors’ notes certifying their fitness for duty before returning to work, as a practical matter, doctors and other health care professionals may be too busy during the pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches, such as requesting an employee’s prescription, may be necessary.

This is a challenging time and events are changing rapidly. EEOC guidance and interpretation of what is permissible under the ADA and Title VII is evolving and may change as circumstances develop.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

For more employer guidance from Gov’t Agencies amid the COVID-19 pandemic, see the National Law Review dedicated Coronavirus News section.

EEOC Provides Guidance on Reporting Non-Binary Gender Employees

Over the last few years, many employers have implemented diversity and inclusion programs, whether official or unofficial, emphasizing a work force that includes a wide variety of individuals based on, among other categories, race, gender, and sexual orientation.

Internally, companies have updated employment policies, expanded the scope of anti-harassment trainings, created avenues for diverse mentorship, and implemented changes to create workplaces that include and support a diverse office culture.

Externally, a number of states too have begun to update government documents to accommodate diverse individuals, including those who identify their gender as non-binary. For example, California recently enacted legislation permitting individuals to identify as female (F), male (M), or non-binary (X) on their drivers’ licenses.

Yet many employers with non-binary employees have been concerned as to how to appropriately report all of their employees on the federal EEO-1 reports and still comply with the law. As we previously reported, in 2017, the EEOC made it clear that the protections offered by Title VII include an “individual’s transgender status or the individual’s intent to transition,” “gender identity,” and “sexual orientation.”

The EEOC guidance also went further, stating that “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner” is sex-based harassment.  It is clear, therefore, that non-binary individuals must be afforded protections regarding their gender identity.  However, the EEO-1 report, which requires employers with over 100 employees to submit data specific to their employees’ gender and race/ethnicity, limits the gender categories to either male or female.  Employers with non-binary employees therefore have had no category to indicate the correct gender identity of these individuals, and several questioned whether it was appropriate (or even legally compliant) to request that non-binary employees choose a marker for which they do not identify.

Last month, the EEOC offered guidance by updating its Frequently Asked Questions to address this issue.  In the FAQ, the EEOC advises that employers “may report employee counts and labor hours for non-binary gender employees by job category and pay band and racial group in the comment box on the Certification Page,” and further provides examples as to how employers may comply with submitting the EEOC-required data in the future for those employees who identify as non-binary.

While describing these details in a comment box as opposed to checking a pre-marked gender identity box is not as streamlined or efficient as some employers would have hoped, it is at least a step toward ensuring that employers have a means to comply with reporting requirements and support their employees by acknowledging the gender identity of their choice.

© 2019 Foley & Lardner LLP

For more on diversity in the workplace, see the National Law Review Labor & Employment law page.

Does Inconsistency Always Kill the Cat?

Spoiler alert – this article doesn’t have anything to do with cats. But it is about something you hear all the time from employment attorneys. You have to be consistent when it comes to enforcing your attendance policies and plant rules. You have to treat all employees the same. If you don’t, there is a huge risk you won’t be successful in defending your disciplinary decisions in labor arbitrations and employment litigation. As a general rule, this is excellent advice.

Does this mean, though, that you absolutely have to be consistent 100% of the time? If you make an exception to your attendance policy by giving a particular employee one last chance (other than for reasons relating to the ADA or the FMLA), will that be the end of your ability to enforce the policy?

Will excusing a violation of a plant rule in one instance mean you can never enforce it? Will your company be a victim of the “no good deed goes unpunished” rule?

The answer is that if you make exceptions sparingly, and wisely, you will probably be okay. Here are some tips that will put you in a better position to defend the (very) occasional exception:

  1. Make sure you have a compelling reason for making an exception, something that really makes this employee’s situation very different from other cases (e.g., some combination of a long service employee, an otherwise outstanding overall record, and a believable and sympathetic explanation from the employee as to why there was a problem and why it won’t be repeated).
  2. Document why you made an exception. Two years from now, when you are defending an employment litigation and the plaintiff is pointing out how he/she was treated “worse” than the employee for whom you made an exception, you will be in a far better position to remember and explain why you made the exception, and have a judge or jury decide the exception shouldn’t be held against you, if you have contemporaneous documentation explaining the exception.
  3. Be extremely judicious in your use of exceptions. If lack of consistency becomes the rule, rather than the exception, you are going to have a very hard time enforcing your policies and rules.
  4. Make sure the circumstance in front of you today (when you are not making an exception) really is different from the circumstance where you made an exception two years ago. In other words, if the employee you are considering disciplining now is in substantially the same boat as the employee for whom you made an exception, you should rethink whether to impose the discipline.

None of this is meant to minimize the problems that can be caused by inconsistent treatment. Even the EEOC, however, recognizes that there are circumstances where disparate treatment is justifiable. Enforce your rules and policies consistently, but don’t be afraid to make an exception where circumstances, and fairness, demand it.

© 2019 Foley & Lardner LLP
For more in employment  & scheduling, see the National Law Review Labor & Employment page.

Misidentification of Employer in Discrimination Charge Not Enough for Dismissal

The U.S. Court of Appeals for the Seventh Circuit recently gave an employee a pass in his age discrimination suit against his former employer, where he inaccurately identified his former employer in the charging document. Significantly, the Seventh Circuit forgave the technical defect in the plaintiff’s charge, where the plaintiff had acted diligently and the failure to provide notice to the employer rested almost entirely with the Equal Employment Opportunity Commission (EEOC).

Reversing the district court’s dismissal of the complaint for the plaintiff’s “minor error in stating the name of the employer,” the Seventh Circuit explained that “it is particularly inappropriate to undermine the effectiveness of [the Age Discrimination in Employment Act (ADEA)] by dismissing claims merely because the victim of the alleged discrimination failed to comply with the intricate technicalities of the statute.”

In Trujillo v. Rockledge Furniture LLC, d/b/a Ashley Furniture Homestore, the Seventh Circuit overturned a decision by the U.S. District Court for the Northern District of Illinois granting the defendant employer’s motion to dismiss. The plaintiff filed a charge of discrimination in May 2016, asserting age discrimination and retaliation. The plaintiff supplied the EEOC with the correct address and telephone number of his work location, but misidentified his employer as “Ashley Furniture Homestore.” His employer’s trade name was actually “Ashley Furniture HomeStore – Rockledge.”

Inexplicably, the EEOC did not contact the employer at the address or telephone number provided, but instead forwarded the charge to a Texas entity that operated Ashley Furniture stores in that state. When the EEOC informed the plaintiff’s counsel that the Texas entity had no record of his employment, the plaintiff’s counsel sent the EEOC a paystub listing the entity name and address for the defendant. However, the EEOC still did not contact the defendant. Instead it issued a right to sue letter, and the plaintiff brought suit in April 2017.

Given the plaintiff’s failure to precisely identify the defendant in his charge, the defendant moved to dismiss, arguing a failure to properly exhaust his administrative remedies. The district court granted the motion.

On appeal, the Seventh Circuit reversed for two reasons. First, it found that the plaintiff’s trivial naming error, akin to a misspelling, should not defeat his ability to pursue his claim. Second, and most significantly, the Seventh Circuit explained that, given the information provided to the EEOC, the plaintiff should not have been barred from pursuing his claims as a result of the EEOC’s failure to locate the correct employer.

Notably, the EEOC filed an amicus brief in support of plaintiff’s appeal, admitting its error and arguing that the focus should be on the information provided to the EEOC, not what the EEOC did with that information. The court agreed, stating that the information provided by the plaintiff should have been sufficient for the EEOC to investigate the plaintiff’s allegations and to attempt to eliminate the alleged unlawful practices – which is the purpose of the charge-filing requirement. According to the Seventh Circuit, penalizing the charging party plaintiff for the EEOC’s mistake would frustrate the purpose of charge filing.

The practical effect of this decision is that it narrows the grounds on which employers may obtain dismissal of discrimination suits based upon the plaintiff’s failure to exhaust administrative remedies. While the employer had no notice of the charge, and thus had no opportunity to attempt pre-litigation conciliation, the court gave plaintiff the benefit of the doubt – likely due in no small part to the EEOC admitting it dropped the ball.

Nevertheless, as we highlighted in our blog last week, where appropriate, employers facing discrimination litigation would still be wise to raise the exhaustion defense at the pleading stage, so as not to waive it. Facts may come to light that would permit an exhaustion defense later in the case.

© 2019 BARNES & THORNBURG LLP
More on employment discrimination issues on the National Law Review Labor & Employment page.

What’s the Lowdown on the Shutdown?

The partial government shutdown continues. The shutdown has captured the attention of Washington politicians and the media, not to mention the hundreds of thousands of federal employees who are currently furloughed or working without pay.

For employers, the shutdown has some important implications. While the Department of Labor (DOL) and the National Labor Relations Board (NLRB) are fully funded through October 2019, the Equal Employment Opportunity Commission (EEOC) is not.

As a result of the lack of funding, the EEOC is closed until further notice.

WHAT DOES THAT MEAN FOR EMPLOYERS? A FEW THINGS:

  • The EEOC will not begin processing new employment discrimination cases until it reopens.
    However, the EEOC has been clear that the shutdown will not extend the statute of limitations for employees to file charges (300 days for Wisconsin employees). Employees who are close to the filing deadline are being encouraged to file charges by mail while the EEOC’s online portal remains closed to the public. Presumably, charges postmarked within the statute of limitations will be considered timely; however, this extra step may discourage some employees from filing claims.
  • Deadlines assigned to employers cannot be ignored on account of the shutdown.
    For example, a notice of charge dated December 21, 2018 with a position statement due date of January 21, 2019 cannot be ignored. Just as employees remain subject to the statute of limitations for their claims, so too are employers required to continue to meet their deadlines. If an extension is required, you should contact legal counsel as soon as possible. Generally, EEOC staff will not be able to respond to communications.
  • Pending EEOC charges will be suspended during the shutdown.
    This includes claims currently under investigation and those in the EEOC’s mediation program. Likewise, all EEOC litigation will be suspended except in cases where a continuance has not been granted.
  • The government shutdown does not affect state law discrimination claims.
    The Wisconsin Equal Rights Division (ERD) continues to accept discrimination claims, including those normally cross-filed with the EEOC. Employers must continue to respond to communications from the ERD.

Past experience suggests that if and when the EEOC reopens for business, there will be a significant backlog of cases to sort through. Employers should therefore expect the EEOC’s actions and communications to lag in 2019 as the agency works to get caught up on processing, investigating, and resolving cases.

 

Copyright © 2019 Godfrey & Kahn S.C.
This post was written by M. Scott LeBlanc of Godfrey & Kahn S.C.

Read more labor and employment news on the National Law Review’s labor and employment type of law page.

What Is Going On With The Revised EEO-1 Form? Acting EEOC Chair Provides Insight Into Its Status

As loyal readers of our blog are aware, in February 2016, the EEOC released a rule to amend the Form EEO-1.  The new rule requires private employers (including federal contractors) with 100 or more employees to submit pay data with their EEO-1 reports.  Employers with fewer than 100 employees will still not need to file an EEO-1.  Federal contractors with 50-99 employees are still required to file an EEO-1, but are not required to submit the new pay data.  The rule is slated to go into effect on March 31, 2018.

Since the election of President Trump, employers have been watching anxiously to see if the new form and the burdens it places on them will be modified or ideally repealed.  Although employers are not required to submit the new form until March 2018, the addition of compensation information has dramatically increased the complexity of preparing EEO-1 submissions.  As a consequence, if the new EEO-1 form is to remain in effect, employers should start preparing for this new requirement immediately (if they have not already begun).

Efforts have been underway to rescind the new EEO-1 form – including efforts in Congress.  The Chamber of Commerce requested that the Office of Management and Budget (“OMB”) rescind the new form because it violates the Paperwork Reduction Act (“PRA”), arguing that the EEOC’s revised EEO-1 does not “(1) minimize the burden on those required to comply with government requests; (2) maximize the utility of the information being sought; and/or (3) ensure that the information provided is subject to appropriate confidentiality and privacy protections” as required by the PRA.

On August 3, 2017, Acting Chair of the Equal Employment Opportunity Commission (“EEOC”), Victoria Lipnic, speaking at the Industry National Liaison Group’s Annual Conference in San Antonio, Texas, discussed the fate of the revised Form EEO-1.  Speech provided new information about the EEO-1 and her efforts to have the revised form rescinded.

Chair Lipnic noted that the Office of Information and Regulatory Affairs (“OIRA”), which is housed within the OMB, would be the entity deciding Chamber of Commerce’s challenge.  Chair Lipnic informed the gathering that the Administrator of OIRA, Neomi Rao, had only recently been confirmed to the post, but that she (Chair Lipnic) had already reached out to discuss the issues raised by the new EEO-1 form.

Chair Lipnic shared that she has sent Administrator Rao a memorandum, asking OIRA to decide by the end of this month (August 2017) whether to implement or discard the wage data collection portion of the revised EEO-1.  Recognizing the burden posed by the new compensation data requirements, Chair Lipnic expressed that it was important to provide employers with information about the fate of the revised EEO-1 sooner rather than later, so employers can prepare to comply.  In Chair Lipnic’s words, “time is of the essence.”

This post was written by Connie N Bertram Guy Brenner and Alex C Weinstein of Proskauer Rose LLP.
Read more legal analysis at the National Law Review.

Business and Employee Groups Oppose Merger of OFCCP with EEOC

President Trump’s 2018 budget, released on May 23, proposes to merge the Office of Federal Contract Compliance Programs (OFCCP) with the Equal Employment Opportunity Commission (EEOC) by the end of FY 2018.  The proposed merger purports to result in “one agency to combat employment discrimination.”  The Trump administration asserts that the merger would “reduce operational redundancies, promote efficiencies, improve services to citizens, and strengthen civil rights enforcement.”

Both business groups and employee civil rights organizations have opposed the measure, albeit for different reasons.  The OFCCP is a division of the U.S. Department of Labor, while the EEOC is an independent federal agency.  Although both deal with issues of employment discrimination, their mandates, functions and focus are different.  The OFCCP’s function is to ensure that federal government contractors take affirmative action to avoid discrimination on the basis of race, color, religion, sex, national origin, disability and protected veteran status.  The OFCCP, which was created in 1978, enforces Executive Order 11246, as amended, the Rehabilitation Act of 1973, as amended, and the Veterans’ Readjustment Assistance Act of 1975.  The EEOC administers and enforces several federal employment discrimination laws prohibiting discrimination on the basis of race, national origin, religion, sex, age, disability, gender identity, genetic information, and retaliation for complaining or supporting a claim of discrimination.  Its function is to investigation individual charges of discrimination brought by private and public sector employees against their employers.  The EEOC was established in 1965, following the enactment of Title VII of the Civil Rights Act of 1964.

Business groups oppose the OFCCP’s merger into the EEOC due to concerns that it would create a more powerful EEOC with greater enforcement powers.  For example, the OFCCP conducts audits, which compile substantial data on government contractors’ workforces, while the EEOC possesses the power to subpoena employer records.  Combining these tools could provide the “new” EEOC with substantially greater enforcement power.  Civil rights and employee organizations oppose the merger, believing that overall it would result in less funding for the combined functions currently performed by each agency.

The budget proposal is consistent with the Trump administration’s goal to reduce costs and redundancies through a reorganization of governmental functions and elimination of executive branch agencies.  In light of opposition from both employers and employees, however, the measure lacks a powerful proponent; as a result, it is unlikely that the administration will succeed in effecting a combination, at least as it is currently proposed.

This post was written by Salvatore G. Gangemi of Murtha Cullina.

EEOC Orientation-Bias Guidance Stirs Controversy among Commentators

EEOC Supreme CourtThe public comment period for the U.S. Equal Employment Opportunity Commission’s (EEOC) proposed workplace harassment guidance closed last week. The EEOC’s broad definition of sexual orientation bias drew attention from practitioners and advocacy groups alike. Amidst the uncertain legal landscape surrounding harassment based on sex, the EEOC’s proposed guidance takes a progressive stance on the scope of what constitutes sex-based harassment. Under the proposed guidance, the EEOC’s definition of harassment based on sex, protected by Title VII, includes an “individual’s transgender status or the individual’s intent to transition,” “gender identity,” and “sexual orientation.” The guidance went further, stating that “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner” is sex-based harassment.

The proposed guidance follows a June 2016 report issued by the EEOC’s Task Force on Workplace Harassment, describing strategies to prevent harassment at work. According to the report, almost one-third of claims filed with the EEOC are harassment-based, with sexual harassment constituting over 40% of the claims in the private sector. Issued this past January, the EEOC’s proposed guidance’s purpose is to guide practitioners, employers, and employees alike on the agency’s position toward different types of harassment protected by Title VII. The new guidance updates nearly three-decades-old EEOC direction on workplace harassment and expands the scope of harassment in several areas, including sexual orientation and gender identity. The public comment period, which ended this past week, drew 154 comments. The wide array of those comments highlights the controversial nature of what is and is not be protected under Title VII when it comes to sex-based harassment.

Most critics of the proposed guidance called the EEOC’s definition of sex-based harassment premature and unsupported by case law. Three federal appellate courts are currently deciding cases based on whether sexual orientation is protected under Title VII, but no appellate court to date has found that it is indeed protected. Opponents of the guidance argued that, without certainty at the Congressional or Supreme Court level, the EEOC is improperly “legislating from below” and is in danger of diminishing its credibility.

On the other hand, supporters of the guidance commended the EEOC for its broad definition of sex-based harassment, and some even urged the EEOC to further broaden the definition to include those who do not identify with the gender binary or who are unable or choose not to transition fully. There was also some concern among proponents that the current phrase “intent to transition” would encourage the court to draft intent-based tests that would exclude certain individuals from protection under Title VII.

Commentators took particular notice of the improper pronoun usage example, which states that using a pronoun inconsistent with an individual’s gender can constitute Title VII-prohibited harassment. Some criticized this as an improper classification of hate speech that went beyond the scope of Title VII protection. Others lobbied for an adjustment period for employees and employers to adopt the new standard or, alternatively, add an intent element to the act. Proponents applauded the example’s inclusion as a type of harassment often experienced by employees.

As the government agencies and courts grapple with what is protected under Title VII, it would be prudent for all employers (including those who are not in states or localities that have explicitly broadened these protections) to include both sexual orientation and gender identity in their policies and trainings. The EEOC’s guidance may signal what is to come in the ever-changing area of sex-based harassment as courts and agencies trend toward a more inclusive definition of sex-based harassment. In addition to the possible legal ramifications, getting ahead of the curve and creating a harassment-free workplace promotes a healthier and happier work environment for all and, in the end, makes good business sense.

ARTICLE BY Taylor E. Whitten of Foley & Lardner LLP
© 2017 Foley & Lardner LLP

Wal-Mart to Pay $75,000 to Settle EEOC Disability Lawsuit

EEOC Wal-mart disability discriminationCHICAGO – Wal-Mart Stores Inc. will pay a former employee $75,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.

EEOC’s lawsuit charged Wal-Mart with violating federal discrimination law when the giant retailer failed to accommodate Nancy Stack, a cancer survivor with physical limitations, and subjected her to harassment based on her disability. Stack worked at a Walmart store in Hodgkins, Ill.

As a workplace accommodation, Stack needed a chair and a modified schedule. EEOC alleged that while the store provided Stack with a modified schedule for a period of time, it revoked the accommodation for no stated reason. Further, according to EEOC, the store did not ensure that a chair was in Stack’s work area, telling her that she had to haul a chair from the furniture department to her work area, a task that was difficult, given her disability. Making matters even worse, EEOC alleged that a co-worker harassed Stack by calling her “cripple” and “chemo brain.”

Wal-Mart’s alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, which can include denying reasonable accommodations to employees with disabilities and subjecting them to a hostile work environment. EEOC filed suit in U.S. District Court for the Northern District of Illinois, Eastern Division (Equal Employment Opportunity Commission v. Wal-Mart Stores, Inc.; Civil Action No. 15-cv-5796.)

Wal-Mart will pay $75,000 in monetary relief to Stack as part of a consent decree settling the suit, signed by U.S. District Judge Sharon Coleman on Dec. 6th. The two-year decree also provides additional, non-monetary relief intended to improve the Hodgkins store’s workplace. Under the decree, the store will train employees on disability discrimination and requests for reasonable accommodations under the ADA. The Walmart store will also monitor requests for accommodation and complaints of disability discrimination and report those to EEOC.

“Wal-Mart refused to provide simple, effective and inexpensive accommodations in the form of a chair and modified schedule and failed to protect Stack from mocking because she had cancer,” said John Hendrickson, regional attorney of EEOC’s Chicago District Office. “Both the failure to provide accommodations and to stop the harassment violated federal law, and we are pleased with today’s settlement. Ms. Stack will receive monetary recompense from Wal-Mart, and the company will be required to educate its workforce on employees’ rights and on its own obligations under the law.”

You can review this press release in its entirety on the EEOC website here.

EEOC’s Chicago District Office is responsible for processing charges of employment discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

ARTICLE BY U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission