equal Employment opportunity Commission Archives

Recent Scrutiny of English-Only Workplace Rules Comes into Focus During National Hispanic Heritage Month

National Hispanic Heritage Month is celebrated each year from September 15 to October 15 in recognition of the contributions of Hispanic and Latino people to the history, culture, and economy of the United States. During this time, several Latin American countries celebrate their independence days. Employers can also use this month as a reminder to remain compliant with anti-discrimination and anti-harassment laws.

Quick Hits

National Hispanic Heritage Month starts on September 15 and ends on October 15 each year in the United States.
Hispanic workers constitute approximately 19 percent of the U.S. labor force, or approximately 32 million people, and that proportion continues to rise. Foreign-born workers, of which Hispanics account for 47.6 percent, make up 18.6 percent of the U.S. civilian workforce.
The U.S. Equal Employment Opportunity Commission (EEOC) reports that in 2023 just nineteen lawsuits alleging race or national origin discrimination cost employers $4.9 million.

Recent EEOC Cases

Employers usually have anti-discrimination and anti-harassment policies to protect Hispanic/Latino employees and applicants from employment discrimination. However, protections from discrimination based on national origin—particularly, workplace policies prohibiting language discrimination—sometimes are overlooked by employers. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on national origin, and the EEOC considers an individual’s primary language “often an essential national origin characteristic.” (See 29 C.F.R. § 1606.7(a).)

This means employers generally may not mandate that employees or applicants speak English. While employers may require English in certain employment situations, such as when speaking only English is needed to ensure safe and efficient communication for specific tasks, an English-only rule must be justified by business necessity and put in place for nondiscriminatory reasons. These situations will typically be specified, limited, and communicated to all employees in a language they understand. Recent cases show how this aspect of Title VII is being enforced.

On June 26, 2024, the EEOC announced a settlement with a housekeeping company that allegedly required its employees in California to speak only English at all times. As a result, the employer agreed to pay monetary damages to the complainant—a Spanish-speaking housekeeper who worked in a nursing home in Concord, California. Additionally, the employer agreed to provide training for its California employees and to revise its policies to clearly state that it would not restrict languages spoken by employees who didn’t perform patient care—and that employees had the right to speak their preferred languages in the workplace. The employer agreed to issue its policies in Spanish, English, and any other language spoken by 5 percent or more of the employer’s California workforce. The EEOC stressed that “[c]lient relations and customer preference do not justify discriminatory [English-only] policies.”

On March 29, 2023, the EEOC announced that a staffing firm based in Washington and Oregon had agreed to pay $276,000 to settle discrimination and retaliation claims. Allegedly, the employer had imposed a no-Spanish rule, which lacked adequate business justification, and then had fired five employees who opposed the rule and continued to speak Spanish in the workplace. The employer agreed to provide an anonymous complaint process for employees, update its policies to be in English and Spanish, perform its investigations promptly, and train its staff on the new anti-discrimination policies. The director of the EEOC’s Seattle field office warned employers that they “should think twice before imposing limitations on what languages are ‘allowed’ to be used at work.” She further warned that in the absence of “a legitimate business necessity, such policies [were] likely to discriminate against workers based on their national origin.”

A Growing Demographic

In 2023, there were 65.2 million Hispanic people in the United States, representing approximately 19.5 percent of the U.S. population. Hispanic workers make up 19 percent of the U.S. labor force, and those rates continue to grow, according to the U.S. Census Bureau and the U.S. Bureau of Labor Statistics (BLS). By 2030, BLS projects Hispanic workers will constitute 21 percent of the U.S. labor force.

Looking Ahead

The EEOC is likely to scrutinize employers’ English-only rules and policies as potentially violative of Title VII, as national origin discrimination includes discrimination based on language, ancestry, place of origin, origin (ethnic) group, culture, and even accent. Employers may wish to review their hiring and onboarding policies and practices to ensure compliance with Title VII and avoid potential legal issues, as recent cases demonstrate the EEOC’s active enforcement of protections against national origin discrimination.

To mitigate the risk of costly litigation, employers may also want to consider implementing management training focused on ensuring managers understand that requiring English at all times may be considered discrimination on the basis of national origin.

EEOC Unveils Final Rule Implementing Pregnant Workers Fairness Act PWFA

Go-To Guide:

Effective June 18, employers covered by the Pregnancy Workers Fairness Act (PWFA) are required to offer reasonable workplace accommodations to workers who are pregnant or have a condition related to pregnancy or childbirth.
PWFA applies to covered entities, which include public and private employers with 15 or more employees, unions, employment agencies, and the federal government.
A preliminary injunction was entered on June 17, which “postpones the effective date of the Final Rule’s requirement that covered entities provide accommodation for purely elective abortions of employees that are not necessary to treat a medical condition related to pregnancy” for the states of Louisiana and Mississippi.
Covered employers should review the requirements of the PWFA to ensure that their workplace policies and procedures allow for the requisite accommodations under the Act and follow current challenges to accommodations regarding elective abortions under the law.

The U.S. Equal Employment Opportunity Commission (EEOC) final rule implementing the Pregnant Workers Fairness Act (PWFA) went into effect June 18, 2024, but not without legal challenge.

The final rule, covered in a previous GT Alert, requires employers to offer reasonable workplace accommodations to workers who are pregnant or have a condition related to pregnancy or childbirth. The rule includes an exception for employers if the requested accommodation would cause the business an undue hardship.

However, the requirement of a workplace accommodation for “purely elective abortions” has been enjoined from implementation and enforcement in the states of Louisiana and Mississippi and against four Catholic organizations. On June 17, 2024, Judge David C. Joseph in the U.S. District Court for the Western District of Louisiana ruled that the EEOC overstepped its authority by requiring workplace accommodations for “purely elective abortions.”

The motions for preliminary injunction, filed by the states of Louisiana and Mississippi, as well as four entities affiliated with the Catholic Church, sought injunctive relief to the extent that the PWFA requires employers to accommodate purely elective abortions of employees. The court rejected the EEOC argument “that Congress could reasonably be understood to have granted [it] the authority to interpret the scope of the PWFA in a way that imposes a nationwide mandate on both public and private employers – irrespective of applicable abortion-related state laws enacted in the wake of Dobbs – to provide workplace accommodation for the elective abortions of employees.”

Based on its analysis, the court entered a preliminary injunction which “postpones the effective date of the Final Rule’s requirement that covered entities provide accommodation for the elective abortions of employees that are not necessary to treat a medical condition related to pregnancy” for the states of Louisiana and Mississippi and any agency thereof, any covered entity under the final rule with respect to all employees whose primary duty station is located in Louisiana or Mississippi, and the entities affiliated with the Catholic Church that sought the court’s involvement.¹

What should employers know to ensure compliance with the PWFA, given the limited injunctive relief issued? Below is a summary of the law and considerations for implementing the rule, which is now effective.

Application

The PWFA applies to employees, which include applicants and former employees where relevant based on Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978.
The PWFA applies to covered entities, which include public and private employers with 15 or more employees, unions, employment agencies, and the federal government.
The states of Louisiana and Mississippi; employers located in Louisiana and Mississippi and with employees whose primary duty station is located within the states; and the U.S. Conference of Catholic Bishops, the Society of the Roman Catholic Church of the Diocese of Lake Charles, the Society of the Roman Catholic Church of the Diocese of Lafayette, and the Catholic University of America are not required to provide accommodations for the elective abortions of employees that are not necessary to treat a medical condition related to the pregnancy.

What Is Considered a ‘Known Limitation’?

A limitation is “known” to a covered entity if the employee, or the employee’s representative, has communicated the limitation to the covered entity.
The physical or mental condition may be a modest or minor and/or episodic impediment or problem.
An employee affected by pregnancy, childbirth, or related medical conditions that had a need or a problem related to maintaining their health or the health of the pregnancy. “Pregnancy, childbirth, or related medical conditions” includes uncomplicated pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.
An employee affected by pregnancy, childbirth, or related medical conditions who sought health care related to pregnancy, childbirth, or a related medical condition itself.
There is possible overlap between the PWFA and the Americans with Disabilities Act (ADA) because in these situations, the qualified employee may be entitled to an accommodation under either statute, as the protections of both may apply.

What Is an ‘Undue Hardship’?

An employer or covered entity does not need to provide a reasonable accommodation if it causes an undue hardship, meaning significant difficulty or expense, to the employer.

The PWFA Prohibits the Following Conduct by Covered Employers

Failure to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship;
Requiring an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
Requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
Punishing or retaliating against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation); and/or
Coercing individuals who are exercising their rights or helping others exercise their rights under the PWFA.

Non-Exhaustive List Of Examples of ‘Reasonable Accommodations’

Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
Changing food or drink policies to allow for a water bottle or food;
Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;
Changing a uniform or dress code or providing safety equipment that fits;
Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
Telework;
Temporary reassignment;
Temporary suspension of one or more essential functions of a job;
Leave for health care appointments;
Light duty or help with lifting or other manual labor; or
Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

Employer Training

Employers should consider training supervisors on how to respond to requests for accommodation.
Unlike requests for accommodation under the ADA, an accommodation pursuant to the PWFA may include a temporary suspension of essential job functions for qualified individuals (barring undue hardship to the employer).
Employees do not need to use specific words to request an accommodation to begin the interactive process.
Employers may not require that the employee seeking an accommodation be examined by a health care provider selected by the employer.

¹Further efforts to enjoin the implementation of the Rule were thwarted when the U.S. District Court for the District of Arkansas denied a motion for injunctive relief filed by a group of Republican state attorneys general on the grounds that the plaintiffs lacked standing to challenge the rule.

Payday: Terminated Employee Awarded $78,000 in EEOC Settlement

Employees returning to work following a hospitalization or illness can present legally nuanced issues, particularly if an employer is considering terminating an employee in close proximity to such a leave. A recent case settled by a company with the Equal Employment Opportunity Commission (EEOC) highlights some of the legal risks that can come into play.

According to an EEOC press release: “The EEOC charged in [a lawsuit] that, in February 2022, [a company] fired a long-tenured receptionist, despite having recognized the 78-year-old employee as one of its employees of the year in January 2022. The receptionist’s termination came shortly after a brief hospitalization. The EEOC alleged that upon the receptionist’s return to work, [the company’s] general manager asked her how long she planned to continue to work, whether she needed to work, and whether she would prefer to spend her time traveling and seeing family instead of working.

Although the receptionist expressed her desire to continue working, and despite having never previously raised substantial performance concerns to the receptionist, the general manager told the receptionist that [the company] had lost confidence in her ability to work, citing her recent hospitalization. The receptionist was fired the next day and replaced by substantially younger employees.”

The EEOC alleged that these actions violated the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), noting the alleged statements about “losing confidence” in the employee due to a hospitalization could be viewed as disability discrimination (the ADA defines “disability” very broadly), and the fact the employee was over the age of 40 (i.e., in the protected age group) and replaced with a younger employee could give rise to an inference of age discrimination under the ADEA.

The company elected to settle the allegations. As part of the settlement, the company agreed to pay $78,000 to the terminated employee. In addition, it entered into a two-year consent decree that also requires it to “revise its ADEA and ADA policies, post a notice in the workplace informing employees of the settlement, and train all employees and supervisors on their rights and responsibilities under both the ADEA and the ADA. Moreover, the company agreed to provide the EEOC with periodic reports regarding any future complaints of age or disability discrimination including a description of each employee’s allegations and the company’s response.”

Accordingly, this case serves as an important reminder that employee terminations should be carefully evaluated with respect to legal risks under various employment laws. Vetting such risks on the front end may mitigate pain on the back end.

EEOC Publishes Long-Awaited Final Guidance on Workplace Harassment

On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued the final version of new workplace harassment guidance for employers, formally updating the EEOC’s position on the legal standards and employer liability under federal antidiscrimination laws for the first time in more than two decades.

Quick Hits

The EEOC issued a final version of new guidance for employers clarifying its positions on the applications of federal laws prohibiting harassment and retaliation.
The new guidance is the first update to the EEOC’s workplace harassment guidance since 1999 and incorporates several new developments in the law and modern workforces.
Key to the new guidance is that it recognizes unlawful harassment against LGBTQ+ individuals and addresses workplace protections for “pregnancy, childbirth, or related medical conditions,” including “lactation.”
The new guidance took immediate effect upon issuance.

The new guidance, “Enforcement Guidance on Harassment in the Workplace,” clarifies the EEOC’s position on several key issues following its receipt of nearly 40,000 comments in response to its proposed guidance published on October 2, 2023.

“The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law,” EEOC Chair Charlotte Burrows said in a statement released with the new guidance.

In that regard, the final guidance aligns with the Supreme Court of the United States’ 2020 decision in Bostock v. Clayton County, Georgia—wherein the prohibition under Title VII of the Civil Rights Act of 1964 against gender discrimination was held to include claims predicated on sexual orientation and gender identification—and recognizes potentially unlawful workplace harassment against LGBTQ+ individuals. The final guidance also addresses another key area of focus, that is, workplace protections for “pregnancy, childbirth, or related medical conditions,” including “lactation” in accordance with the Pregnant Workers Fairness Act (PWFA) and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), and the EEOC’s final guidance on the PWFA issued on April 15, 2024.

While claims of harassment represented more than a third of all discrimination charges filed with the EEOC between fiscal years 2016 and 2023, the Commission has not updated its guidance on harassment since 1999. The final guidance consolidates and replaces the EEOC’s five guidance documents issued from 1987 through 1999.

Significant for employers, the final guidance provides more than seventy hypothetical examples of potential unlawful harassment, including examples reflective of today’s modern workforce with both hybrid and remote workers and widespread use of electronic communication and social media.

Covered Harassment

The EEOC made several key updates to what it considers covered harassment under Title VII and other federal antidiscrimination laws.

Race and Color

The new guidance expands the EEOC’s explanation on potential harassment based on “color” under Title VII, separating it out into its own section that was not included in the proposed guidance. The guidance states that while discrimination based on color is “sometimes related to harassment based on race or national origin, color-based harassment due to an individual’s pigmentation, complexion, or skin shade or tone is independently covered by Title VII.”

The guidance provides an example of potential color-based harassment where a supervisor harasses Black employees with “darker complexions” and not Black employees with “lighter skin tones,” even though they are all of the same race or national origin.

Pregnancy, Childbirth, or Related Medical Conditions

The guidance states that harassment based on pregnancy, childbirth, or related medical conditions “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion,” if that harassment “is linked to a targeted individual’s sex.” The new guidance adds multiple hypothetical examples of such harassment not included in the proposed guidance, including a situation where employees make negative comments about a pregnant employee who is allowed to “telework up to three days per week and utilize flexible scheduling” as an accommodation for “pregnancy-related morning sickness.” Another example highlighted a situation where negative comments are directed toward a female worker who expresses milk in the lactation room at work and other inappropriate behavior, namely a male worker knocking on the door of the lactation room and feigning intent to enter the room.

Sexual Orientation and Gender Identity

The new guidance explains the EEOC’s view that discrimination based on sexual orientation or gender identity is a form of unlawful sex-based discrimination under Title VII, including epithets, physical assault, “outing” (meaning disclosing an individual’s sexual orientation or gender identity without permission), or other harassing conduct toward individuals because they do “not present in a manner that would stereotypically be associated with that person’s sex.”

Further, the guidance identifies as potential harassment the “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” Importantly, the final guidance requires some intentional or knowing behavior, that is “repeated and intentional” misgendering based on an individual’s “known” gender identity. (Emphasis added.)

Genetic Information

The new guidance further clarifies the EEOC’s understanding of unlawful harassment under the Genetic Information Nondiscrimination Act (GINA) as applying to “harassment based on an individual’s, or an individual’s family member’s, genetic test or on the basis of an individual’s family medical history.” For instance, the guidance states that such harassment could include harassing an employee “because the employee’s mother recently experienced a severe case of norovirus, which resulted in overnight hospitalization.”

Retaliatory Harassment

The final guidance includes a new section that addresses the concept of “retaliatory harassment.” The guidance clarifies the EEOC’s position that “retaliatory harassing conduct” may still be challenged as unlawful retaliation “even if it is not sufficiently severe or pervasive to alter the terms and conditions of employment by creating a hostile work environment.” The EEOC explained that the legal standards for hostile work environment and retaliation are different as the anti-retaliation provisions proscribe a broader range of behaviors, namely, “anything that might deter a reasonable person from engaging in protected activity.”

Intraclass and Intersectional Harassment

The guidance includes examples of “intraclass” harassment where the harasser is in the same protected category as the individual being harassed. One hypothetical involves a fifty-two-year-old supervisor making derogatory comments toward a sixty-five-year-old employee as an example of harassment based on age, even though both individuals are over the age of forty. “Intersectional” harassment refers to situations where individuals are targeted based on their membership in more than one protected category. In one example, the hypothetical raises a situation where a male manager made comments to a female worker about her having a “hot flash” and being menopausal. The EEOC explained that such targeting based on “stereotypes about older women is covered as both age and sex discrimination.”

Reporting Procedures, Complaint Process, and Training

The proposed guidance outlined the “minimum” features of an effective anti-harassment policy, the “minimum” features for an effective complaint process, and the “minimum” features for effective anti-harassment training. The final guidance eliminates the “minimum” language, but the features of each are substantively the same otherwise.

As it concerns remedial measures, the Commission removed language from the proposed guidance that seemingly recognized the “fewer options” available to employers when faced with instances of harassment perpetrated by nonemployees, harassment toward employees working at client locations as is common for temporary staffing agencies, or harassment arising from off-duty conduct. In its place, the final guidance simply provides that employers have an “arsenal of incentives and sanctions” available to them to address harassment, but those options “may vary depending on who engages in the conduct and where it occurs, among other considerations.”

Next Steps

While the final guidance is likely to face legal challenges in the courts, employers may want to review their workplace policies and practices, particularly in light of potential liability for discrimination or harassment against LGBTQ+ employees. Additionally, employers may want to note differing state or local laws and state or local agency guidance that differ from Title VII and other federal laws enforced by the EEOC.

In addition to the new guidance, the EEOC published a “Summary of Key Provisions” document and a fact sheet for small businesses, with more information for employers.

Pregnant Workers Fairness Act Final Regulations Released

The Equal Employment Opportunity Commission (EEOC) released the text of the final regulations and interpretative guidance implementing the Pregnant Workers Fairness Act (PWFA) on April 15, 2024. The final regulations are expected to be formally published in the April 19, 2024, Federal Register and will be effective 60 days later.

The EEOC received more than 100,000 public comments, including comments from Jackson Lewis, in response to the Commission’s notice of the proposed regulations issued on Aug. 11, 2023. Although largely unchanged from the proposed regulations, the final regulations provide important clarifications and insights into how the EEOC will enforce the law. Discussed below are some key points employers need to know about the final regulations.

Key PWFA Requirements

The PWFA, which went into effect on June 27, 2023, requires employers with at least 15 employees and other covered entities to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause undue hardship on the operation of the employer’s business.

Qualified Employee

Under the PWFA, an employee has two ways to establish they are a “qualified employee”:

Like under the Americans With Disabilities Act (ADA), “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position” is qualified.
If an employee (or applicant) cannot perform all essential job functions even with reasonable accommodation, the employee can be qualified for accommodations under the PWFA if: (a) the inability to perform an essential job function is for a temporary period; (b) the essential job function(s) could be performed in the near future; and (c) the inability to perform the essential function(s) can be reasonably accommodated. The Act, however, does not define “temporary” or “in the near future.” Several commentors raised concerns about the EEOC’s definition of these terms in the proposed regulations.

Like the proposed regulations, the final regulations state that “temporary” means “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” Unlike the proposed regulations, however, the final regulations state that assessing whether all essential job functions can be performed in the near future depends on the circumstances:

For a current pregnancy, “in the near future” is generally defined as 40 weeks from the start of the temporary suspension of an essential function.
For conditions other than a current pregnancy, “in the near future” is not defined as any particular length of time. However, the preamble to the final regulations explains that an employee who needs indefinite leave cannot perform essential job functions “in the near future.”

The final regulations explain that employers should consider whether an employee will be able to perform the essential functions “in the near future” each time an employee asks for an accommodation that requires suspension of an essential job function.

Ultimately, whether an employee is “qualified” involves a fact-sensitive evaluation whether the temporary suspension of essential job functions can be reasonably accommodated by the employer. This is significantly different from the ADA reasonable accommodation obligation and may involve, as the final regulations state, removing essential job functions and other arrangements including, but not limited to, requiring the employee perform the remaining job functions and other functions assigned by the employer, temporarily transferring the employee to another job or assigning the employee to light or modified duty, or allowing the employee to participate in an employer’s light or modified duty program.

Accommodations Only Required for Individual With Limitation

The EEOC explains that the regulations do not require employers to provide accommodations to an employee when an employee’s partner, spouse, or family member — not the employee themselves — has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. For clarity, the EEOC revised the final regulations’ definition of “limited” to state the limitation must be the specific employee.

Known Limitations

Employers are only obligated under the PWFA to accommodate an individual’s “known limitation.”

A “limitation” is defined as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, of the specific employee in question.” The condition may be “modest, minor, and/or episodic, and does not need to meet the definition of “disability” under the ADA.

It becomes “known” to the employer when the employee or the employee’s representative has communicated the limitation to the employer. An employee’s representative may include a family member, friend, healthcare provider, union representative, or other representative.

The limitation may be communicated to a supervisor, a manager, someone who has supervisory authority for the employee or who regularly directs the employee’s tasks (or the equivalent in the case of an applicant), human resources personnel, or other appropriate official or by following the steps in the employer’s policy to request an accommodation.

This communication need not be in any specific format and may also be oral.

Pregnancy, Childbirth, Related Medical Conditions

Although the EEOC acknowledged receiving many comments on the scope of the proposed definition of “pregnancy, childbirth or related medical conditions,” it made no substantive changes to the definition in the final regulations.

“Pregnancy” and “childbirth” are still defined as including current pregnancy, past pregnancy, potential or intended pregnancy (which can include infertility, fertility treatments and the use of contraception), labor, and childbirth (including vaginal and cesarean delivery).

The term “related medical conditions” continues to be defined as conditions that are “related to, are affected by, or arise out of pregnancy or childbirth.” The regulations provide the following non-exhaustive list of examples: termination of pregnancy, including by miscarriage, stillbirth, or abortion; lactation and conditions related to lactation; menstruation; postpartum depression, anxiety or psychosis; vaginal bleeding; preeclampsia; pelvic prolapse; preterm labor; ectopic pregnancy; gestational diabetes; cesarean or perineal wound infection; maternal cardiometabolic disease; endometriosis; changes in hormone levels; and many other conditions.

The final regulations also reference related medical conditions that are not unique to pregnancy or childbirth, such as chronic migraine headaches, nausea or vomiting, high blood pressure, incontinence, carpal tunnel syndrome, and many other medical conditions. These conditions are covered by the PWFA only if the condition relates to pregnancy or childbirth or are exacerbated by pregnancy or childbirth, although the ADA or other civil rights statutes may apply.

Documentation

The final PWFA regulations continue to provide for a “reasonableness” standard in evaluating the circumstances under which an employer may request documentation from an employee. The final regulations, however, modify the definition of “reasonable documentation.” An employer may only request the “minimum documentation” necessary to confirm the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and describe the adjustment or change at work due to the limitation.

In addition to stating when an employer can ask for documentation, the PWFA regulations add a paragraph regarding an employee’s self-confirmation of their pregnancy status. It provides that an employer must accept as sufficient an employee’s self-confirmation when: (1) the pregnancy is obvious; or (2) an employee seeks one of the “predictable assessment” accommodation requests set forth in the regulations (discussed below).

The final PWFA regulations make clear the circumstances where it is not reasonable to seek supporting documentation. These circumstances include when: (1) the limitation and adjustment or change needed is obvious and the employee provides self-confirmation; (2) the employer has sufficient information to determine whether the employee has a qualifying limitation and needs an adjustment or change due to the limitation; (3) when the employee is pregnant a “predictable assessment”; (4) the reasonable accommodation relates to a time and/or place to pump or to nurse during work hours, and the employee provides self-confirmation; or (5) the requested accommodation is available to employees without known limitations under the PWFA pursuant to a policy or practice without submitting supporting documentation.

Importantly, the same prohibitions on disability-related inquiries and medical examinations as well as the protection of medical information enforced under the ADA apply with equal force to documentation collected under the PWFA. Employers should ensure they continue to limit inquiries to only those that are job-related and consistent with business necessity. Employers should also treat all documentation relating to a PWFA accommodation request like they treat ADA documentation — maintain it confidentially and separate from an employee’s personnel file.

Reasonable Accommodations

The PFWA requires employers to provide reasonable accommodations, which the final regulations define to be generally consistently with the ADA except for temporarily excusing or eliminating the performance of an essential job function. Otherwise, the rule provides that a reasonable accommodation is a modification or adjustment that is “reasonable on its face, i.e., ordinarily or in the run of cases” if it appears to be “feasible” or “plausible.” An accommodation also must be effective in meeting the qualified employee’s needs to remove a work-related barrier and provide an employee with equal employment opportunity to benefit from all privileges of employment.

The final regulations include examples of requests that may be reasonable. These include schedule changes due to morning sickness or to treat medical issues following delivery, adjustments to accommodate restrictions for lifting or requests for light duty, time and/or space to pump or nurse during work hours, or time off to recover from childbirth.

Lactation Accommodations

The EEOC’s final regulations require reasonable accommodation for lactation beyond what may be required under the Providing Urgent Maternal Protection for Nursing Mothers Act (PUMP Act). The PUMP Act generally requires reasonable break time and space shielded from view and free from intrusion for a nursing mother to express breast milk. The final PWFA regulations provide a non-exhaustive list of examples of accommodations relating to lactation, including space for pumping that is in reasonable proximity to a sink, running water, and refrigeration for storing milk.

The final regulations add nursing during working hours (as distinct from pumping) to the list of potentially reasonable accommodations. In the comments explaining this addition, the EEOC cautioned that accommodations for nursing mothers during work hours address situations where the employee and child are in close proximity in the normal course of business, such as where the employee works from home or where the employer offers on-site daycare. The EEOC stated this is not intended to create a right to proximity to nurse because of an employee’s preference.

Predictable Assessments

Like the proposed regulations, the final regulations recognize four “predictable assessments” that will not impose an undue hardship in “virtually all cases”:

Allowing an employee to carry or keep water near to enable them to drink;
Permitting an employee to take additional restroom breaks as needed;
Allowing an employee whose work requires standing to sit and whose work requires sitting to stand as needed; and
Allowing an employee to take breaks to eat and drink as needed.

Despite stating the predictable assessments above will not “in virtually all cases” impose an undue hardship, the EEOC clarified this does not mean such requests are reasonable per se. The EEOC recognized that in certain industries, these predictable assessments may cause an undue hardship. Accordingly, employers may still conduct an individualized assessment of a predictable assessment accommodation request. However, the final regulations make clear that any such individualized assessment should be particularly simple and straightforward.

Many individuals and organizations that submitted comments on the proposed regulations suggested the addition of other types of predictable assessment accommodations, including dress code modifications, minor workstation modifications, proximity to a restroom, permitting eating and drinking at a workstation, rest breaks, and personal protective equipment. Although noting agreement with the commenters and stating that employers should be able to provide such requests with “little difficulty,” the EEOC declined to expand the list of predictable assessments beyond the four originally listed that in “virtually all cases” will be considered reasonable and will not pose an undue hardship. In response to comments objecting to predictable assessments based on different challenges by industry, the EEOC guidance recognizes that an employer in certain industries may assert an accommodation request otherwise deemed to be a predictable assessment causes the employer an undue hardship and may deny the request.

Undue Hardship

The EEOC adopted the same standard for undue hardship in the final regulations as was in the proposed regulations. When an employee can perform all their essential job functions, the EEOC stated that undue hardship has the same meaning as under the ADA and generally means significant difficulty or expense for the employer’s operation. If an employee cannot perform all essential functions and the accommodation is temporary suspension of an essential job function, the employer needs to consider the ADA definition of undue hardship and the following relevant factors: (1) the length of time the employee or applicant will be unable to perform the essential function(s); (2) whether there is work for the employee to accomplish by allowing the employee to perform all the other functions of the job, transferring the employee to a different position, or otherwise; (3) the nature of the essential function, including its frequency; (4) whether the covered entity has temporarily suspended the performance of essential job functions for other employees in similar positions; (5) whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s); and (6) whether the essential function(s) can be postponed or remain unperformed for any length of time and for how long.

EEOC Interpretative Guidance

The EEOC’s final regulations include an appendix entitled “Appendix A to Part 1636—Interpretative Guidance on the Pregnant Workers Fairness Act” (Interpretative Guidance). The Interpretative Guidance, which becomes part of the final regulations, has the same force and effect as the final regulations.

The Interpretative Guidance addresses the major provisions of the PWFA and its regulations and explains the main concepts pertaining to an employer’s legal requirements under the PWFA to make reasonable accommodations for known limitations (physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions). It represents the EEOC’s interpretation of the PWFA and, as stated in comments to the final regulations, the EEOC will be guided by the Interpretive Guidance when enforcing the PWFA. The Interpretative Guidance includes many examples and other practical guidance illustrating common workplace scenarios and how the PWFA applies.

Remedies, Enforcement

The final regulations’ remedies and enforcement are the same as proposed. Remedies under the PWFA mirror those under Title VII of the Civil Rights Act and include injunctive and other equitable relief, compensatory and punitive damages, and attorney’s fees. Employers that demonstrate good faith efforts to work with employees to identify and make reasonable accommodations have an affirmative defense to money damages.

PWFA’s Relationship to Other Federal, State, Local Laws

The final regulations provide that the PWFA does not invalidate or limit the powers, remedies, or procedures available under any federal, state, or local law that provides greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions. About 40 states and cities have laws protecting employees and applicants from discrimination due to pregnancy, childbirth, and related medical conditions. Accordingly, employers should evaluate whether state and/or local law may provide greater rights and obligations than the PWFA. To the extent such laws provide greater obligations, the PWFA final regulations require employers to comply with both the PWFA and analogous state and local law.

EEOC Takes Action to Address Mental Health Discrimination in the Workplace

Employers must take notice that the United State Equal Opportunity Commission (EEOC) is cracking down on companies that discriminate against workers because they have a mental health condition. Mental health conditions, such as major depressive disorder, bipolar disorder, and schizophrenia, substantially limit brain function. The EEOC determined these disorders constitute disabilities under the American with Disabilities Act (ADA).

The EEOC has significantly increased charges against employers for alleged ADA violations premised upon mental health issues.

In September, the EEOC released its Strategic Enforcement Plan (SEP). A review of the SEP reveals that the EEOC will focus on harassment, retaliation, job segregation, labor trafficking, discriminatory pay, disparate working conditions, and other policies and practices that impact particularly vulnerable workers and persons from underserved communities, including workers with mental health related disabilities.

Hence, employers must be extremely careful when dealing with employees or prospective employees who suffer from mental health conditions.

Under the ADA and other nondiscrimination laws, employers must provide “reasonable accommodations” to qualified employees with disabilities. These accommodations are adjustments to the workplace that allow these employees to perform their job duties. These accommodations are usually not costly and can be beneficial in allowing employees to return to work, avoiding productivity losses, and promoting the recruitment and retention of qualified employees.

However, not all employees with mental health conditions require accommodations to perform their job duties. For those who do, accommodations should be individualized and developed with the input of the employee. Below is a list of examples of accommodations that have helped employees with mental health conditions to better perform their job duties. These are not all possible accommodations but provide a starting point to help employers promote an inclusive and supportive work environment. These include:

Flexible workplace arrangements
Scheduling adjustments
Sick leave or flexible use of vacation time
Individualized breaks
Modification of non-essential job duties
Additional training or support
Positive reinforcement and flexible supervision
Accommodations to the work environment, equipment, and technology
Regular meetings between employees and supervisors to discuss workplace issues.

It is important for all employees to be aware of their rights and provide relevant training to co-workers and supervisors. Effective implementation of these accommodations will help create a more inclusive work environment and benefit both employees and employers.

Employers, It’s Time to Replace Your Mandatory EEOC Poster

On October 20, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released an updated version of its mandatory workplace poster that informs employees of their rights and protections.

Employers must post this new version of the poster in their office spaces as soon as practicable.

The latest “Know Your Rights” flyer, which replaces the previous “EEO is Law” poster, must be displayed in all workplaces covered by the agency’s jurisdiction. This includes private sector businesses with 15 or more employees, as well as state and local government agencies, educational institutions, unions, and staffing agencies.

What’s Changed?

The new poster includes several updates from the older version. Some of the main changes are:

Clarification that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, or gender identity;
Identifies harassment as a prohibited form of discrimination;
Provides information about equal pay discrimination for federal contractors; and
Uses more straightforward language and formatting.

The poster also includes a QR code for employees with a smartphone or other compatible devices to quickly access the EEOC’s website on how to file a charge of employment discrimination.

What’s Remained the Same?

While the poster has been updated, some of the information included remains the same. The bulletin still outlines the types of discrimination that are prohibited by federal law, such as:

Race, color, sex (including pregnancy and related conditions, sexual orientation, or gender identity), national origin, religion,
Age (40 and older),
Equal pay,
Disability,
Genetic information (including family medical history or genetic tests or services), and includes
Retaliation for filing a charge, reasonably opposing discrimination, or participating in a discrimination lawsuit, investigation, or proceeding.

Actions Employers Should Take

Employers who fail to post the new Know Your Rights poster could face noncompliance penalties from the EEOC. Therefore, businesses must take the time to update their posters as soon as possible.

On October 25, 2022, the EEOC distributed an FAQ stating that employers should remove the old poster and display the new one “within a reasonable amount of time” but did not provide a specific deadline.

The agency recommends that employers post the new flyer in a conspicuous place where employees will see it, such as in a break room or near the time clock. Covered employers should also consider posting an online notice on their website for remote or hybrid workers.

You can download a copy of the poster here.

Article By Emily G. Massey and Ward and Smith, P.A.

For more labor and employment legal news, click here to visit the National Law Review.

You Have Mail (Better Read It): District Court Finds EEOC 90-Day Deadline Starts When Email Received

If a letter from the EEOC is in your virtual mailbox but you never open it, have you received it? Most of us are familiar with the requirement that a claimant who files an EEOC charge has 90 days to file a lawsuit after receiving what is usually required a “right-to-sue” letter from the agency. This is one of the deadlines that both plaintiff and defense counsel track on their calendars. But when is that notice officially “received” by the claimant — especially in these days of electronic correspondence? In Paniconi v. Abington Hospital-Jefferson Health, one Pennsylvania federal court decided to draw a hard line on when that date actually occurs.

A Cautionary Tale

Denise Paniconi worked for a hospital in Pennsylvania and filed a charge of discrimination with the EEOC alleging race and religious discrimination. The EEOC investigated and issued a right-to-sue letter dated September 8, 2021, which gave her 90 days to file her complaint. She filed her complaint 91 days after the EEOC issued the letter. The employer moved to dismiss the complaint for failing to comply with the 90-day deadline.

What ordinarily would just be a day counting exercise took a twist because of how the EEOC issued the notice. The EEOC sent both the plaintiff and her lawyer an email stating that there was an “important document” now available on the EEOC portal. Neither the plaintiff nor her lawyer opened the email or accessed the portal until sometime later. They argued that the 90-day filing deadline should run from the date that the claimant actually accesses the document, not from the date the EEOC notified them it was available.

The court dismissed the complaint for failing to meet the deadline. The opinion noted that although the 90-day period is not a “jurisdictional predicate,” it cannot be extended, even by one day, without some sort of recognized equitable consideration. Paniconi’s lawyer argued that the court should apply the old rule for snail mail ̶ without proof otherwise, it should be assumed that the notice is received within three days after the issuance date. The court disagreed and pointed out that no one disputed the date that the email was sent ̶ it was simply not opened and read by either Paniconi or her lawyer. The court said that there was no reason that those individuals did not open the email and meet the 90-day deadline.

Deadlines Are Important

This is another example of how electronic communication can complicate the legal world. The EEOC has leaned into its use of the portal, and the rest of the world needs to get used to it. The minute you receive an email or notice from the portal, you need to calendar that deadline. Some courts (at least this one) believe that electronic communication is immediate, and you may not get grace for not logging on and finding out what is happening with your charge. Yet another reason to stay on top of your emails.

Article By J. William Manuel and Anne R. Yuengert of Bradley Arant Boult Cummings LLP

For more labor and employment legal news, click here to visit the National Law Review.

EEOC Proposes Rule Requiring Employers to Disclose Pay Data on EEO-1 Forms and Key Recent Pro-Employee Changes in New York State’s and New York City’s Employment Laws and Regulations

EEOC EEO-1 Form Pay Data Requirement Raises Risks for Management

In a proposed regulation announced on January 29, 2015, the U.S. Equal Employment Opportunity Commission set forth changes that would require federal contractors and all other private-sector employers throughout the nation of more than 100 employees to report wage and salary data on their annual EEO-1 Forms. This new rule would mandate that such employers disclose compensation ranges and hours worked on their EEO-1 Forms, which already must contain data on employees’ gender, ethnicity, and race.

The Commission’s plans to require management to submit this data is part of the Obama Administration’s aggressive efforts to enforce the federal Equal Pay Act and other fair employment statutes and to promote pay equity in the workplace. Complying with the new regulation would require employers to spend substantial additional time and resources in gathering compensation information, which often involves many variables, and then organizing it into the format that the EEOC will mandate. Reporting this data to the EEOC would give the U.S. Government data without context and may lead to burdensome Commission investigations and enforcement actions based on misunderstandings of incomplete compensation information. Further, even though EEO-1 data enjoys some protections, the confidential status of employers’compensation information will now be vulnerable either to Freedom of Information Act requests or to kind of hacking attacks to which the federal government, with its antiquated IT systems in agencies such as the EEOC, has already suffered.

In sum, employers in New Jersey, New York, and around the country would become subject to higher EEOC scrutiny of their payroll practices, would face more Commission inquiries and litigations, would have to expend additional resources to complete EEO-1 Forms, and would need to live with a higher risk that their competitors will be able to obtain the confidential compensation data that the new rule would require management to submit each year to the EEOC.

Key Pro-Employee Changes in New York State and New York City Employment Laws and Regulations

New York State and New York City made significant changes in their labor and employment laws and regulations last year and this month. The NYS Legislature enacted, and Governor Cuomo signed, key revisions to laws that affect management throughout New York State. Mayor de Blasio and the City Council expanded local laws that further burden employers in the City. These important developments include:

A. New York State Women’s Equality Agenda

The Women’s Equality Agenda that went into effect on January 19, 2016 significantly amended New York State’s sex discrimination, sexual harassment, and equal pay laws to afford women greater protection in the workplace. These new statutes promoting gender equality in New York State include provisions that:

1. Amend New York State’s Equal Pay Act to require that an employer which pays lower wages to women than to men, for a job of equal skill, effort, and responsibility, demonstrate that such disparity is due to a bona fide factor other than sex, such as education, training, or experience, and that the difference in pay is job related and consistent with business necessity.

2. Make it unlawful for employers, in general, to prohibit employees from discussing or disclosing their wages — a new provision which affects both women and men.

3. Significantly increase the penalties for New York State Equal Pay Act violations by allowing employees to recover liquidated damages of three times (300%) the unlawfully unpaid wages, in addition to making the employee whole by requiring payment of the unpaid wages.

4. Allow a court to award attorneys’ fees to a prevailing plaintiff in sexual harassment and other sex discrimination actions.

5. Add familial status as a protected class under the New York State Human Rights Law. This new provision applies equally to men and women who are parents or guardians.

6. Expand the New York State Human Rights Law’s coverage of sexual harassment claims to all employers, including employers of from one to three employees who were not previously covered.

7. Require employers to provide reasonable accommodation for pregnancy-related medical conditions.

B. New NYS and NYC Protections for Transgender Individuals

1. Earlier this month, the New York State Division of Human Rights adopted regulations that make discrimination on the basis of a person being transgender unlawful under the New York State Human Rights Law. These regulations also prohibit harassment of transgender persons and require New York employers to reasonably accommodate employees who have been diagnosed with a “gender dysphoria” medical condition.

2. On December 21, 2015, the New York City Commission on Human Rights issued new enforcement guidelines on discrimination against transgender individuals, which the New York City Human Rights Law prohibits. The guidelines provide for penalties of up to $250,000 for violations that are found to be willful, wanton, or malicious.

C. New NYC Protections for Caregivers

1. The New York City Council has amended the New York City Human Rights Law to include caregiver as a protected class. The new local legislation, which Mayor de Blasio signed on January 5, 2016, defines caregivers as persons who provide direct and ongoing care for a minor child or a care recipient, such as a relative or individual with a disability who resides in the caregiver’s household. This amendment will go into effect on May 4, 2016.

Article By David I. Rosen, Galit Kierkut & Charles H. Kaplan of Sills Cummis & Gross P.C.

Supreme Court Calls Out the EEOC for Arguing It Alone Can Determine Whether It Followed the Law

We suggested last year that if you felt paranoid that the federal agencies seemed out to get employers, perhaps it was not paranoia at all. The Equal Employment Opportunity Commission’s (EEOC) spate of recent lawsuits — or at least its apparent haste to sue employers and make examples out of them over such things as wellness programs (even before issuing proposed guidance on what was permissible relative to such well-intentioned programs) — clearly did not help with this concern. However, a decision by the Supreme Court last week tightened the reins on the EEOC and reminded it that, in seeking to pursue litigation against employers for violations of law, the Commission must follow the law itself and answer to claims that it has failed to do so.

Pursuant to Title VII, the EEOC must attempt to eliminate unlawful employment practices through “informal methods of conference, conciliation, and persuasion” before suing an employer for employment discrimination. Employers may feel this does not always happen because the EEOC has lately seemed more intent on filing suit (and getting press attention for its agenda…) than working things out. Consequently, employers assert they receive insufficient information from the EEOC and are forced to make a decision on a take-it-or-leave-it basis which, if wrong, can have costly consequences. The Commission has stood firm on its use of federal muscle by asserting the courts cannot review whether it has fulfilled its pre-suit conciliation obligation; only the EEOC can review whether the EEOC can do what the EEOC is supposed to do (which seems imminently fair, right?). The Supreme Court has just said otherwise.

The case arose from litigation filed by the EEOC in 2011 on behalf of a class of female applicants not hired by the employer as miners. The employer raised as a defense the argument that the EEOC had failed to conciliate in good faith prior to filing suit, based on two letters sent by the Commission. The first informed the employer that a finding of reasonable cause had been made and “[a] representative of this office will be in contact with each party in the near future to begin the conciliation process.” The second letter declared that conciliation had “occurred” and failed, though it appears that the EEOC’s actual conciliation efforts were thin at best.

The EEOC argued that its conciliation efforts were immune from court review and that, if the courts had the power to review such efforts, it could only review its actions based on the two letters. In response, the court noted the obvious point that without court review, “the Commission’s compliance with the law would rest in the Commission’s hands alone.” Justice Elena Kagan, writing for the court, also rejected the EEOC’s second argument, stating that “[c]ontrary to its intimation, those letters do not themselves fulfill the conciliation condition: The first declares only that the process will start soon, and the second only that it has concluded. . . . to treat the letters as sufficient — to take them at face value, as the Government wants — is simply to accept the EEOC’s say-so that it complied with the law.”

The court then instructed the EEOC on what it must do to follow Title VII: 1) give the employer notice of the “specific allegation,” including “what the employer has done and which employees (or class of employees) have suffered as a result”; and 2) “try to engage the employer in some form of discussion (written or oral), to give the employer an opportunity to remedy the allegedly discriminatory practice.” Justice Kagan then asserted that while judicial review is limited exclusively to whether or not the EEOC has fulfilled these requirements, if the employer provides credible evidence that the EEOC did not fulfill the requirements then a court must conduct the fact finding necessary to decide that limited dispute. If the evidence shows a failure to properly conciliate, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance. Accordingly, while stays of cases may be entered until the EEOC is given the opportunity to do what it was supposed to have done, it is unlikely that any case will be dismissed for failure to meet the pre-suit requirements.

This decision is absolutely a win for employers, as it calls the EEOC out for its improper use of federal muscle through litigation and make an example of an employer without first giving it a legitimate opportunity to assess its options. While the decision will not put employers in control, or even on equal standing, with the EEOC prior to suit, it does create leverage to insist the EEOC meet the minimum requirements. As a practical matter, this may cause the EEOC to be more forthcoming, and cooperative, at least when pressed. And employers should do exactly that if necessary and carefully document circumstances when it feels the EEOC has not done what it must.

Authored by: Gregory D Snell of Foley & Lardner LLP

Tag: equal Employment opportunity Commission

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