Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

During a House Subcommittee hearing, Equal Employment Opportunity Commission (EEOC) Chair Jacqueline Berrien responded to questions about recent agency enforcement and regulatory initiatives. Among other topics, Berrien touched on an employer’s use of credit, criminal, and unemployment histories in making employment decisions, as well as the agency’s renewed focus on systemic discrimination cases.

Subcommittee Chairman Rep. Tim Walberg (R-MI) opened the hearing by commenting that the agency has “traditionally focused its enforcement activities on individual complaints of discrimination,” but that under the recently-approved Strategic Plan, the agency has “shifted more attention toward systemic discrimination that involves an alleged pattern or practice of discrimination. The commission has set a goal that up to 24 percent of all litigated cases be systemic in nature.” Walberg criticized this approach as not being in the best interest of employers and employees. He said that many such investigations “are launched without any employee alleging discrimination.” What purpose does it serve, he asked, when the EEOC investigates businesses without any evidence of wrongdoing? He claimed that the EEOC should not be diverting its resources to investigating “a hunch.”

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Pursuant to the agency’s Strategic Plan, the Equal Employment Opportunity Commission (EEOC) has revised and updated four disability guidance documents. Among other goals outlined in the Strategic Plan is to ensure the EEOC “provides up-to-date guidance on the requirements of antidiscrimination laws.” To that end, the agency has made available revised question and answer documents on how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities.

According to the EEOC:

the revised documents reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.

Photo credit: timmy

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Last week the Equal Employment Opportunity Commission (EEOC) settled its first lawsuit involving a discrimination claim based on an applicant’s genetic history. The lawsuit alleged that Fabricut, a fabric distributor, violated the Genetic Information Nondiscrimination Act (GINA) when it requested a family medical history in its post-offer medical examination to a temporary employee and then violated the Americans with Disabilities Act (ADA) by denying a regular position to the temporary employee because it regarded her as having carpal tunnel syndrome.

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By Ilyse Schuman and Sherron McClain

On May 8, 2013, The Equal Employment Opportunity Commission (EEOC) held a public meeting that addressed the interaction between employer-sponsored wellness programs and federal equal employment opportunity statutes enforced by the EEOC. Commissioners Constance Barker, Victoria Lipnic, Chai Feldblum, and Commission Chair Jacqueline Berrien were present and joined by seven panelists representing business, advocacy groups and providers. Opening statements by Commissioners Barker, Lipnic, and Feldblum all noted the increased attention that that the nation’s collective health and employer-sponsored wellness programs have received in recent years. Commissioner Barker further noted that the Commission’s focus is on ensuring that groups protected by federal employment laws receive equal access to wellness programs and are permitted to enjoy the rewards offered for choosing those programs.

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The Equal Employment Opportunity Commission (EEOC) is seeking input from “individuals, employers, advocacy groups, agency stakeholders and other interested parties” on its Quality Control Plan (QCP) draft principles. The QCP’s purpose is to revise the standards used to assess the quality of the agency’s investigations and conciliations of discrimination complaints. In February 2012 the EEOC approved a more comprehensive Strategic Plan, which outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. Pursuant to this Strategic Plan, the EEOC is to develop and approve a QCP that will measure the agency’s performance in handling discrimination claims.

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The Equal Employment Opportunity Commission (EEOC) intends to hold a public meeting next week to address the interplay between employee wellness programs and various federal equal employment opportunity laws. Several panelists will discuss how implementing wellness programs could raise issues under the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and other EEOC-enforced statutes.

The meeting will take place on Wednesday, May 8, 2013, at 9:00 a.m., Eastern Time, in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 "M" Street, NE, Washington, D.C. 20507. Individuals wishing to attend the public meeting should arrive at least 30 minutes in advance due to seating limitations.

Photo credit: Skynesher

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On April 25, 2013, the Senate confirmed Jenny R. Yang to be a Member of the Equal Employment Opportunity Commission (EEOC) to fill the open Democratic seat. Her term will expire on July 1, 2017.

As previously discussed, Yang comes to the EEOC from private practice, where she specialized in representing employees in civil rights class actions and wage and hour collective actions. Among the priorities of the EEOC’s recently approved Strategic Enforcement Plan (SEP) are the enforcement of equal pay laws and focus on systemic cases. Yang’s skillset, therefore, aligns with these goals.

Prior to working in private practice, Yang served as a U.S. Department of Justice (DOJ) trial attorney in the employment litigation section of the DOJ’s Civil Rights Division. Yang has also worked as a New York University Community Service Fund attorney fellow at the National Employment Law Project, and as a law clerk for the U.S. District Court for the Eastern District of Pennsylvania. According to her attorney profile, Yang is the Vice Chair of the Board of Directors for the Asian Pacific American Legal Resource Center and a former Co-Chair of the National Governing Board for the National Asian Pacific American Women’s Forum. She received her law degree from New York University School of Law, and her undergraduate degree in Government from Cornell University.

Yang joins Chair Jacqueline Berrien (D), Constance S. Barker (R), Chai Feldblum (D), and Victoria A. Lipnic (R).

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President Obama’s much-anticipated Fiscal Year 2014 budget proposal would fund several federal agency employment initiatives and enforcement efforts. Among other programs that would affect employers, the FY 2014 budget would provide a 10% income tax credit for small businesses that hire new employees or increase wages. Links to various portions of the budget can be found on the Office of Management and Budget’s webpage. The President’s budget proposal is subject to Congressional approval, where it will likely face opposition. The budget is, nonetheless, an important signal of the Administration’s priorities, and the proposal indicates that employers should prepare for greater enforcement and regulatory activity. A summary of key agency budget levels and the programs to be funded are as follows:

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The Equal Employment Opportunity Commission (EEOC) has announced its intent to provide an update on its implementation of the Commission’s Strategic Plan for Fiscal Years 2012-2016.  Approved one year ago, the Strategic Plan outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts.

The first portion of the meeting will address the EEOC’s progress in executing the Strategic Plan. The EEOC will devote the remainder of the meeting – which will be closed to the public – to administrative matters.

This meeting will be held on Wednesday, February 20, 2013 at 9:30 a.m. EST in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 "M" Street, NE, Washington, D.C. 20507. Seating is limited, so those interested in attending the public session are encouraged to arrive a half hour beforehand.

Photo credit: Rapid Eye Media

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The Equal Employment Opportunity Commission (EEOC) has announced that it is seeking public input on the development of a Quality Control Plan (QCP) that will revise the standards used to assess the quality of the agency’s investigations and conciliations of discrimination complaints. In February 2012 the EEOC approved a more comprehensive Strategic Plan, which outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. Pursuant to this Strategic Plan, the EEOC is to develop and approve a QCP that will measure the agency’s performance in handling discrimination claims.

To this end, the EEOC is soliciting suggestions from “individuals, employers, advocacy groups, agency stakeholders and other interested parties.” The agency is particularly interested in suggestions “for quality indicia of investigations or conciliations or general recommendations for improving the quality of our intake process, investigations and conciliations.”

Public comments must be received by Friday, March 1, 2013. Comments may be sent electronically to strategic.plan@eeoc.gov. Alternatively, written recommendations can be mailed to: Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507. Commenters are asked to include a contact e-mail and/or mailing address. These suggestions might be discussed at a future public meeting on the QCP.

Photo credit: PressFoto

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The Equal Employment Opportunity Commission (EEOC) has made available on its website various data tables containing the agency’s discrimination charge and litigation statistics for fiscal year 2012. Overall, the EEOC received 99,412 private sector charges of discrimination between October 1, 2011 and September 30, 2012, down slightly from the 99,947 charges it received the prior fiscal year. The agency also filed fewer lawsuits in 2012 – 122 in 2012 compared to 261 in 2011 – and also resolved fewer cases – 254 in 2012 compared to 276 in 2011. The lawsuit resolutions in 2012 resulted in a total monetary recovery of $44.2 million, down from the $91 million obtained in the prior year.

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The Equal Employment Opportunity Commission (EEOC) has announced its approval of a Strategic Enforcement Plan (SEP) that establishes agency priorities and integrates all components of the EEOC's private, public, and federal sector enforcement activities. The stated purpose of the SEP is to “focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.” Members of the Commission voted 3-1 on December 17, 2012 in favor of the SEP, a component of the EEOC’s larger Strategic Plan for 2012-2016. The final SEP includes some significant differences from the draft plan released in September, which will be discussed below.

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The Equal Employment Opportunity Commission’s (EEOC) newly released Performance and Accountability Report (PAR) (pdf) for fiscal year 2012 states that the agency recovered more than $365.4 million in monetary benefits through its private sector administrative activities, and $44.2 million through litigation. The PAR details the agency’s assessment of its program and financial performance for FY 2012, including number of private sector charges received, federal lawsuits filed, and monetary awards recovered. A more detailed breakdown of the EEOC’s charge statistics will be released later this year.

The PAR notes that the EEOC is in the early stages of implementing its Strategic Plan for Fiscal Years 2012–2016, the four-year plan that outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. The FY 2012 PAR discusses the various benchmarks established by the Strategic Plan, and how well the agency met those goals this year. Highlights of the PAR include the following:

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The Equal Employment Opportunity Commission has released a question and answer fact sheet that appears to extend Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to protect employees or applicants who have experienced domestic or dating violence, sexual assault, or stalking outside of the workplace. The EEOC acknowledges that no federal employment statute specifically prohibits discrimination based on these categories, but provides examples of situations in which it believes employer actions stemming from the employee’s experience with sexual/domestic violence or stalking can give rise to Title VII or ADA violations.

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The Equal Employment Opportunity Commission (EEOC) has released a draft of its Strategic Enforcement Plan (SEP) for public comment. The SEP is a component of the EEOC’s larger Strategic Plan for 2012-2016, a proposal approved in February 2012 that directed the EEOC to develop a SEP that (1) establishes priorities for the EEOC and (2) integrates all components of EEOC's private, public, and federal sector enforcement. Earlier this summer the EEOC held a public meeting to solicit input on the SEP’s development.

The draft SEP identifies the following priorities for national enforcement in both the private and public sectors:

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According to a new report on the collection of pay data, any increased efforts by the Equal Employment Opportunity Commission (EEOC) or Office of Federal Contract Compliance Programs (OFCCP) to gather detailed compensation information absent a more comprehensive plan for obtaining and measuring such data – as would be required under legislative and regulatory proposals – may increase employer burdens without providing the agency with beneficial statistics. The National Academy of Science’s (NAS) report – Collecting Compensation Data from Employers, Panel on Measuring and Collecting Pay Information from U.S. Employers by Gender, Race, and National Origin – concluded that agencies have yet to set forth a strategy for gathering and using the wage data to combat discrimination. The report provides a number of suggested steps that the EEOC and related agencies should take before imposing additional compensation reporting requirements on employers.

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On August 2 President Obama nominated Jenny R. Yang to be a member of the Equal Employment Opportunity Commission (EEOC) to fill a vacant Democratic seat. According to the White House press release announcing her nomination, Yang has held various civil rights-related positions representing employees in both the private and public sectors.

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On Wednesday, July 18, 2012, the Equal Employment Opportunity Commission (EEOC) held a public meeting to solicit input as the agency finalizes its Strategic Enforcement Plan (SEP). The SEP is a component of the EEOC’s larger Strategic Plan for 2012-2016, approved on February 22, 2012, which includes three elements: (1) strategic enforcement, with increased focus on systemic discrimination claims and increased litigation of systemic cases; (2) education and outreach, including partnering with various stakeholders; and (3) improving operations, particularly focusing on quality control efforts among its offices around the country.

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The U.S. Equal Employment Opportunity Commission (EEOC) has created an online database that allows users to access private sector workplace discrimination charge statistics for each U.S. state and territory for fiscal years (FY) 2009-2011. The charge receipt data is broken down by type of discrimination alleged, as well as by the percent of total state and national charges. The EEOC intends to update this database each fiscal year.

In November 2011, the agency released its FY 2011 Performance and Accountability Report (PAR), which included details about the charge statistics filed during that period.

Photo credit: Eclipse Digital

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On Thursday, May 10, 2012, the House of Representatives approved 247-163 a fiscal year 2013 funding bill (H.R. 5326) for a variety of federal agencies, including the Equal Employment Opportunity Commission (EEOC), that includes a series of amendments that would curtail enforcement of certain labor- and employment-related regulations and programs. Generally, the bill would allocate nearly $367 million to the EEOC for FY 2013, but would prevent any of this funding from being used to implement and enforce the EEOC’s final rule that amends its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases.

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The House Appropriations Committee on Thursday approved by voice vote a bill (pdf) that would provide nearly $367 million for the Equal Employment Opportunity Commission for fiscal year 2013, but would prevent any of this funding from being used to implement and enforce the EEOC’s final rule that amends its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases. Specifically, the appropriations bill would give the EEOC $366,568,000 for FY 2013, $6,568,000 more than the Commission was provided in 2012 but more than $7 million below the amount requested. According to the report (pdf) accompanying the funding bill, the measure “includes language making up to $29,500,000 available for payments to State and local enforcement agencies.” In addition, the report states that the Appropriations Committee “is pleased with EEOC’s progress in reducing the backlog of private sector charges. The Committee expects the EEOC to continue to prioritize inventory reduction and to examine new ways to address the backlog and increase productivity. EEOC shall keep the Committee informed about its progress in reducing the backlog.”

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On Wednesday the Equal Employment Opportunity Commission (EEOC) approved in a 4-1 vote updated enforcement guidance governing the legality of considering a job applicant’s or employee’s criminal history when making hiring or other employment decisions. Commissioner Victoria Lipnic (R) joined the Democrat Commissioners in support of the guidance, while Constance Barker (R) was the lone member to vote against the new guidance. The Commission was scheduled to address guidance on reasonable accommodations under the Americans with Disabilities Act (ADA) as well, but did not consider this topic during the April 25 meeting. Although the use of credit history for employment screening had been a topic of discussion during an earlier Commission meeting, the Commission has not issued guidance on this topic either. Given Commissioner Stuart Ishimaru’s (D) impending resignation, it is likely that any new guidance on reasonable accommodation or credit history would need to be a bipartisan effort with only four Commissioners if such guidance is issued at all anytime soon.

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In a landmark decision, the Equal Employment Opportunity Commission (EEOC) has determined that a transgender woman’s claim of employment discrimination based on gender identity, change of sex and/or transgender status is viable under Title VII of the Civil Rights Act. The case, Macy v. Holder, was brought by Mia Macy, a former male police detective who contends she was denied a job as a ballistics technician with the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “Agency”) on account of her decision to become a woman. The EEOC’s finding that Macy may proceed with this cause of action could have wider repercussions in the private sector.

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The Equal Employment Opportunity Commission (EEOC) intends to hold a public meeting on April 25, 2012 to discuss enforcement guidance on the legality of considering arrest and conviction records in making hiring decisions, and guidance on reasonable accommodation and undue hardship under the Americans with Disabilities Act (ADA).

The April 25 meeting will not be the first time the EEOC has considered these issues. In July 2011, the EEOC held a public meeting to discuss the use an applicant’s criminal record. Three months later the EEOC’s Office of Legal Counsel released an advisory opinion on employer use of arrest and conviction records during the hiring process. This non-binding document suggested that the Commission (1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question. It is expected that the EEOC will offer additional guidance on this topic during the April 25 meeting.

Similarly, in June 2011 the EEOC held a separate meeting to discuss reasonable accommodations and leaves of absence under the ADA. During that meeting the agency indicated that it would release further enforcement guidance on these ADA matters. It is anticipated that the EEOC will provide such guidance during next week’s meeting or shortly thereafter.

The meeting is scheduled to begin at 9:30 ET in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507. Those interested in attending are asked to arrive 30 minutes ahead of time due to limited seating.

Photo credit: VladKol

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Equal Employment Opportunity Commission (EEOC) member Stuart Ishimaru has announced that he is resigning from the Commission this month, two months shy of when his second term is set to expire. Ishimaru was appointed to the EEOC in 2003 by former President Bush. From January 20, 2009 until April 7, 2010, Ishimaru served as the Commission’s acting chair. Commissioner Jacqueline Berrien currently holds the chairmanship position.

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The Equal Employment Opportunity Commission (EEOC) has released its final rule (pdf) amending its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases. The changes were spurred by the 2005 U.S. Supreme Court decision Smith v. City of Jackson, in which the Court held that disparate impact claims are cognizable under the ADEA and that an employer could use RFOA as a defense against such a claim. Three years later in Meacham v. Knolls Atomic Power Lab the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case. The final rule seeks to clarify the scope of the RFOA defense in this context.

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The Equal Employment Opportunity Commission (EEOC) has issued revised guidance documents for employers and disabled veterans that address how various employment laws govern veterans’ employment. According to the EEOC, the revised documents incorporate the changes made by the Americans with Disabilities Act Amendment Act (ADAAA), “which make it easier for veterans with a wide range of impairments – including those that are often not well understood – such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.” The first guidance document aimed at employers differentiates between the protections afforded to veterans with service-connected disabilities under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA); explains how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities; and provides employers with information on the applicable laws and regulations governing this topic. For example, the guidance explains that:

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On February 22, 2012 the Equal Employment Opportunity Commission (EEOC) voted 4-1 in favor of its 4-year strategic plan, which outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. As with the draft version of the plan released last month for public comment, the final document places a great deal of emphasis on enforcement and the targeting of systemic discrimination.

One way the new strategic plan differs from the EEOC’s prior plan, according to the agency, is how it measures its performance in reaching the following three strategic objectives: combating employment discrimination through strategic law enforcement; preventing employment discrimination through education and outreach; and delivering excellent and consistent service through a skilled and diverse workforce and effective systems. According to EEOC Commissioner Chai Feldblum during the Feb. 22 meeting, the plan “focuses less on measuring numbers for numbers’ sake, and more on measuring what we need to do in order to achieve our long-term goals.” As stated in the Message from the Commission,  the diminished reliance on specific number goals:

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Three separate panels of witnesses testified at the February 15 Equal Employment Opportunity Commission (EEOC) meeting to discuss the laws that govern pregnancy- and caregiver-based employment discrimination, current charge statistics on these types of claims, and how to help employers comply with the many laws involved. Several panelists urged the Commission to update and clarify current guidance to better assist employers.

Discrimination Statistics

EEOC legal counsel Peggy Mastroianni discussed the general requirements of the Pregnancy Discrimination Act, as well as the provisions of the Americans with Disabilities Act (ADA) that may apply to pregnant workers. Mastroianni stated that the EEOC has long worked to eliminate discrimination based on sex, including discrimination based on pregnancy, relying on a combination of enforcement, policy, and outreach efforts. She noted that, more recently, the Commission has “expanded our focus to address newer forms of discrimination, including unlawful discrimination against individuals with caregiving responsibilities.” According to Mastroianni, over the past decade the EEOC and state and local Fair Employment Practices agencies (FEPAs) “have received 53,865 charges alleging pregnancy discrimination, resolved 52,396 charges, and obtained $150.5 million in monetary benefits for Charging Parties.”

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After an informal discussion letter the Equal Employment Opportunity Commission (EEOC) issued in November 2011 raised more questions than it answered, the agency decided to release additional guidance on when an employer potentially violates the Americans with Disabilities Act (ADA) by requiring employees to have a high school diploma. In the discussion letter, the EEOC stated that:

If an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

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On Wednesday, February 15, 2012, the Equal Employment Opportunity Commission (EEOC) plans to hold a public meeting to discuss discrimination against pregnant workers and workers with caregiving responsibilities. According to the meeting agenda, three separate panels will address the following topics: understanding pregnancy and caregiver discrimination in today’s workplace; statutory framework and enforcement efforts; and the way forward: implications for the future.

In April 2009, the EEOC released a technical assistance document outlining employer best practices for avoiding discrimination against workers with caregiving responsibilities. More recently, the Department of Labor issued a proposed rule that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for FY 2010 (FY 2010 NDAA), a law that, among other provisions, extends current military caregiver leave entitlements. At this point, it is unclear whether the agency plans to update its guidance regarding either pregnancy- or caregiver-related employment discrimination.

Those wishing to attend the meeting, to be held at 9:30 a.m. in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507, are encouraged to arrive at least 30 minutes in advance due to limited seating.

Photo credit: VladKol

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Because the Equal Employment Opportunity Commission (EEOC) received no adverse comments to a proposed rule extending certain recordkeeping and reporting requirements to entities covered by the employment discrimination provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA), the agency is adopting the proposal as final. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The EEOC issued final regulations implementing the employment provisions of GINA in November 2010.

The final recordkeeping rule “does not require the creation of any documents or impose any reporting requirements,” but rather amends current Title VII and Americans with Disabilities Act (ADA) recordkeeping regulations to add references to GINA. These recordkeeping regulations under Title VII and the ADA “require all covered entities to preserve all employment and personnel records that they make or keep for a specified period of time, and to preserve all records relevant to a Title VII or ADA charge until the charge is resolved.” The same obligations are now applicable for GINA-related charges.

The final rule becomes effective on April 3, 2012.

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According to the newly-released enforcement and litigation statistics, private sector employees filed a record number of charges with the Equal Employment Opportunity Commission in 2011. A total of 99,947 charges of employment discrimination were filed with the EEOC in the 12-month period ending on September 30, 2011. During this period, the EEOC filed 261 merit-based lawsuits across the U.S., an increase of 11 lawsuits over the prior year. In addition, claimants received $455.6 million in relief through agency enforcement, mediation and litigation efforts. These findings were first brought to light in the EEOC’s Fiscal Year (FY) 2011 Performance and Accountability Report (PAR) released in November 2011. The charge statistics flesh out the types of claims that were filed during the year, giving employers some indication as to which charges of discrimination are the most frequent and/or most costly to resolve. Highlights of the 2011 data include the following:

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Federal agencies, including the U.S. Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB) have issued their regulatory plans and agendas for 2012. Issued on January 20, 2012, the agencies’ semi-annual regulatory unified agendas outline the regulatory actions that the agencies will likely propose or issue in final form during the upcoming fiscal year. The unified agendas are published in the spring and fall of each year. Although published in January, the latest documents represent the fall 2011 agendas. The fall agendas include the agencies’ regulatory plans, which set forth their statements of regulatory priorities and additional information about the most significant rule-making activities planned for the coming year. The latest agenda indicates that employers can expect aggressive regulatory activity impacting multiple aspects of the workplace in the year ahead.

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The U.S. Equal Employment Opportunity Commission (EEOC) has issued a draft copy of its Strategic Plan for fiscal years 2012-2012, and is soliciting public comment before the five-year plan is finalized. The Congressionally-required strategic plan outlines the agency’s goals for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. The document discusses 13 performance benchmarks that it will use to measure how well the agency achieves its three main performance goals of (1) combating employment discrimination through strategic law enforcement; (2) preventing employment discrimination through education and outreach; and (3) delivering excellent service through effective systems, updated technology, and a skilled and diverse workforce. According to the EEOC, the revised plan “requires significant changes in the agency’s approach to fulfilling its mission. As a result, during the first 1-2 years of the plan, the agency will establish new baselines so that it can finalize the milestones and targets for its measures.”

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A recent U.S. Supreme Court decision has reinforced the protections afforded to religious organizations against employment discrimination lawsuits. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (pdf) the Court unanimously held that the so-called “ministerial exception” included in the Americans with Disabilities Act (ADA) and other employment law statutes prevents a former religious school teacher who taught a full secular curriculum as well as a daily course on religion and regularly led students in prayer and worship – from bringing ADA claims against her employer, as she qualified as a ministerial employee even if the majority of her duties involved secular instruction.

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On November 15, 2011, the EEOC announced the publication of the Fiscal Year (FY) 2011 Performance and Accountability Report (PAR). (pdf) The PAR measures the EEOC’s performance and financial accountability based on its Strategic Plan for FY 2007 through FY 2012. During FY 2011 the EEOC received a total of 99,947 charges -- the highest number of charges in its 46 year history. Since FY 2006, there has been a dramatic increase in the level of charge activity, except for a minor dip in FY 2009, as shown by the following:

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During a public meeting held on November 16, the Equal Employment Opportunity Commission (EEOC) voted 3-2 in favor of a draft final rule defining the parameters of the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The rule will now be sent to the Office of Management and Budget (OMB) for review, and upon approval, published in the Federal Register as a final rule. Following the vote, the Commission held a panel discussion on hiring obstacles that face disabled veterans.

EEOC Rule

The need to clarify the scope of this RFOA defense was brought about by two U.S. Supreme Court cases that addressed an employer’s defense against claims that a facially neutral employment policy or practice has a disparate impact on older workers.

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The Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) have updated the Memorandum of Understanding (MOU) (pdf) between the two agencies “to promote greater efficiency and coordination, and to eliminate conflict and duplication of effort.” The substantive revisions to the MOU – last edited in 1999 – clarify how discrimination complaints or charges filed with one agency are to be processed if they involve issues subject to the jurisdiction of the other.

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The Equal Employment Opportunity Commission (EEOC) will hold a public meeting next week to consider draft final regulations on disparate impact and reasonable factors other than age (RFOA) under the Age Discrimination in Employment Act (ADEA), and employment barriers that face disabled veterans. The meeting will take place next Wednesday, November 16, 2011, at 8:30 a.m. ET in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507.

According to the agency’s semiannual regulatory agenda, the EEOC intended to issue a final rule clarifying the meaning of the RFOA defense used against an ADEA claim and the disparate impact burden of proof under the ADEA by October 2011. In Smith v. City of Jackson, the U.S. Supreme Court held that disparate impact claims are cognizable under the ADEA, and that an employer could use RFOA as a defense against such a claim. To that end, in March 2008, the EEOC issued a notice of proposed rulemaking (NPRM) regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed to address the meaning of RFOA in this context. In light of the 2008 U.S. Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, and comments it received from its NPRM, the EEOC issued a new NPRM in February 2010 to address the scope of the RFOA defense. It is unclear whether the agency plans to vote on and issue the final rule to coincide with the meeting, or whether the hearing will focus on a draft version.

Another listed topic for discussion is “overcoming barriers to the employment of veterans with disabilities.” Although a detailed meeting agenda is not yet available, this portion of the event will likely involve a panel discussion.

As seating for the meeting is limited, the agency suggests arriving at least 30 minutes in advance.

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The Equal Employment Opportunity Commission's Office of Legal Counsel released an advisory opinion on employer use of arrest and conviction records during the hiring process. The non-binding letter provides some insight into the Commission's current enforcement position and suggests the Commission: (1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question. To learn more about the EEOC's advisory opinion and its potential impact on employers, please continue reading Littler's Insight,EEOC Advisory Guidance Offers Insight on the Use of Arrest and Conviction Records, by Rod Fliegel and Jennifer Mora.

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The U.S. Commission on Civil Rights (“USCCR” or “Commission”) has issued a briefing report – English Only Policies in the Workplace (pdf) – recommending that an employer’s English-only policy be deemed unlawful only if such policies are enacted to harass, embarrass, or exclude employees and/or applicants based on their national origin. The report also suggests that Congress amend Title VII of the Civil Rights Act to clarify the meaning of discrimination on the basis of national origin. This recommendation runs contrary to the Equal Employment Opportunity Commission’s (EEOC) stated guidelines on this issue, which, in fact, the briefing report advises should be withdrawn.

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On September 27, the Senate unanimously approved the nomination of Constance Barker to serve as a member of the Equal Employment Opportunity Commission for another five-year term. First nominated by former President George W. Bush in 2008, Barker is one of two Republican members serving on the five-member Commission. Other members of the EEOC include fellow Republican Victoria Lipnic, as well as Chair Jacqueline Berrien (D), Stuart Ishimaru (D) and Chai Feldblum (D).

Barker has worked in both the public and private sectors since graduating from the University of Alabama School of Law in 1977. Her positions have included Alabama state prosecutor, part-time municipal judge, general counsel for a school system, and law firm shareholder. Barker will continue serving as a member of the EEOC until her term expires on July 1, 2016.

Photo credit:  MBPHOTO, INC.

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On September 7, the Senate Committee on Health, Education, Labor and Pensions (HELP) unanimously agreed by voice vote that Constance S. Barker should serve a second five-year term as a member of the Equal Employment Opportunity Commission (EEOC). Her nomination for a second term now moves to the full Senate for approval.

Barker, who was nominated by former President George W. Bush in 2008, is one of two Republican members serving on the five-member Commission. Since graduating from the University of Alabama School of Law in 1977, Barker has worked in both the public and private sectors. Her positions have included Alabama state prosecutor, part-time municipal judge, general counsel for a school system, and law firm shareholder.

President Obama re-nominated Barker in May of 2011, as her term officially expired on July 1, 2011. EEOC members, however, are permitted to continue serving on the Commission until a replacement is seated or the congressional session ends. Other members of the Commission include fellow Republican Victoria Lipnic, as well as Chair Jacqueline Berrien (D), Stuart Ishimaru (D) and Chai Feldblum (D). If confirmed, Barker’s term will expire on July 1, 2016.

Photo credit:  EEOC

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In an informal discussion letter, (pdf) the Equal Employment Opportunity Commission’s Office of Legal Counsel reiterates the position that an employer-provided wellness program that offers financial inducements to provide genetic information as part of a wellness program runs afoul of Title II of the Genetic Information Nondiscrimination Act (GINA). Among other restrictions, GINA limits the ability of health insurers and employers to collect genetic information, which includes family medical history. Whether and to what extent employer-provided wellness programs and health surveys that solicit information about family medical history violate GINA and other statutes and regulations is a rising concern for employers.

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On Tuesday the Equal Employment Opportunity Commission (EEOC) held a public meeting to discuss how an individual’s arrest and conviction records impede employment, but failed to reveal whether it would alter its enforcement guidance on this topic. Currently, under the Commission’s Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, if an employer’s conviction-based screening policy causes a disparate impact, the employer must show that it considered the “nature and gravity of the offense,” the “time that has passed since the conviction and/or completion of sentence,” and the “nature of the job held or sought.” These guidelines have been in place since 1987. However, in a recent Third Circuit case, the court held an employer to a higher burden if its conviction screening policy disparately impacted protected classes. Specifically, in El v. South Eastern Pennsylvania Transportation Authority (SEPTA), the Third Circuit ruled that if an employer’s conviction-based screening policy results in such a disparate impact, the employer must produce “empirical evidence” justifying its screening policy in order to establish a “business necessity” affirmative defense under Title VII. Notably, the EEOC is currently prosecuting a disparate impact lawsuit against at least one employer based on its conviction-based screening policy, has initiated “systemic discrimination” investigations against other employers, and has been holding meetings on this topic.

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According to the Department of Labor’s and Equal Opportunity Commission’s Spring 2011 Semiannual Regulatory Agendas, employers can expect significant new and continued rulemaking activity in the coming months.

Department of Labor

In addition to the labor-management and occupational safety and health regulatory initiatives the Department of Labor plans to undertake over the next 6 to 12 month, the agency’s complete semiannual regulatory agenda indicates that the Employee Benefits Security Administration (EBSA), Wage and Hour Division (WHD), and the Office of Federal Contract Compliance Programs (OFCCP) also plan to issue a number of final and proposed rules over the course of 2011. Some of the highlights of the approximately 80 rules at the pre-, proposed, long-term and final rule stages include the following:

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By E. Ashley Sims

Many in the employment law community expressed surprise at the Equal Employment Opportunity Commission’s topic for the June 22, 2011 meeting: Disparate Treatment in Hiring.  Long gone are the days of overt gender and race discrimination in hiring. Well, aren’t they?

According to the Commission, sort of. American business has come a long way, but the EEOC claimed that there is more work to do. “Forty-five years after the Civil Rights Act of 1964, [the EEOC] still receives meritorious charges on hiring discrimination,” said EEOC Chair Jacqueline Berrien. She continued, “The EEOC will continue to address this problem through enhanced education and outreach and through vigorous enforcement of the law.” Commissioner Constance Barker echoed the Chair’s sentiments, stating “discrimination is evolving” and asked the panelists to weigh in on how the Commission can combat modern hiring discrimination.

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The Equal Employment Opportunity Commission (EEOC) has announced that it will hold a public meeting to discuss “disparate treatment in 21st Century hiring decisions.” The meeting is scheduled to take place on Wednesday, June 22, 2011 at 9:30 a.m. ET, and will be held in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507. Since seating is limited, observers are advised to arrive a half hour beforehand. At this time, a meeting agenda and list of panelists are not yet available, although copies of the speakers’ testimony are usually posted on the EEOC’s website following agency meetings.

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By Peter Petesch

How do you know the appropriate amount of leave to provide an employee as a reasonable accommodation under the Americans with Disabilities Act (ADA)?

You don’t.

The United States Equal Employment Opportunity Commission (EEOC) expects to issue guidance in late summer or early autumn on the topic of reasonable accommodations and leaves of absence under the ADA. On June 8, the EEOC held a public meeting on the subject, with additional written comments welcomed over the next 15 days. In the aftermath of two highly publicized EEOC consent decrees and an expanded number of individuals protected under the law as a result of the ADA Amendments Act (ADAAA) and its implementing regulations, employers can expect to encounter far more situations involving leave of absence as a reasonable accommodation.

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The Equal Employment Opportunity Commission (EEOC) will hold a meeting open to the public to discuss, among other topics, the use of leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). According to the meeting agenda, which is subject to change, invited panelists will discuss the EEOC’s current position and policy statements on the topic and provide advice on how to comply with the law and appropriately grant leave to employees. Question-and-answer sessions will follow each discussion. The meeting will be held on Wednesday, June 8, 2011 at 9:30 A.M. EST in the Commission Meeting Room located on the first floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507. Since seating is limited, observers are encouraged to arrive 30 minutes in advance of the meeting.

Photo credit: Alex Nikada

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The Equal Employment Opportunity Commission (EEOC) has issued a proposal to extend its recordkeeping requirements under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to employers covered by the employment discrimination provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA). Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The EEOC issued final regulations implementing the employment provisions of GINA in November 2010.

The agency’s proposed rule, published in the June 2 edition of the Federal Register, seeks to amend its current Title VII and ADA recordkeeping regulations to add references to GINA. According to the EEOC, the proposal does not request the creation of additional documents nor does it impose any reporting requirements under GINA, “but merely require[s] employers to maintain the records that they do create,” although the agency reserves the right in the future to issue reporting regulations “as may be necessary to accomplish the purposes of GINA.”

Comments on this proposal are due on or before August 1, 2011, and may be submitted through the federal eRulemaking portal, or by mail to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE., Suite 6NE03F, Washington, DC 20507. Written comments of six or fewer pages may be faxed to the Executive Secretariat at (202) 663-4114.

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Except for intake of discrimination charges and appeals, evaluation of any charges that might necessitate a temporary retraining order or other immediate relief, and work on on-going litigation for which an extension has not been granted, the Equal Employment Opportunity Commission (EEOC) would essentially cease operations during the looming government shutdown. As discussed in the agency’s contingency plan in the event of lapsed appropriations, should a federal government shutdown occur:

• Staff will not be available to answer questions from the public, or to respond to correspondence from the public.
• While the EEOC will accept charges that must be filed in order to preserve the rights of a claimant during a shutdown, these charges will not be investigated.
• Insofar as the courts grant EEOC’s requests for extensions of time, EEOC will not litigate in the federal courts.
• Mediations will be cancelled.
• Federal sector hearings will be cancelled, and federal employees’ appeals of discrimination complaints will not be decided.
• Outreach and education events will be cancelled.
• No FOIA requests will be processed.

The agency estimates that out of approximately 2,600 EEOC employees, about 131 staff and contract personnel, many part-time or on call, will perform the agency’s limited functions.

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By Ilyse Schuman and Barry Hartstein

The Equal Employment Opportunity Commission (EEOC) has released its long-awaited final rule (pdf) implementing the equal employment provisions of the Americans with Disabilities Act Amendments Act (ADAAA). The ADAAA, which was signed into law on September 25, 2008, significantly expands the definition of “disability”, enabling more individuals to be covered by the ADA. As discussed in the final rule, the ADAAA retains the basic definition of disability contained in the ADA, which considers an individual disabled if he or she (a) has an impairment that substantially limits one or more major life activities; (b) has a record of such an impairment; or (c) is regarded as having such an impairment. The ADAAA, however, expands the interpretation of these elements making it “much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability.’” To that end, the final rule revises the prior ADA regulations, and includes new interpretive guidance as an appendix to the rule.

These regulations, which take effect 60 days after their publication in the March 25, 2011 edition of the Federal Register, apply to all private and state and local government employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees.

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On Tuesday the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting  to discuss the employment of individuals with mental disabilities. According to EEOC Chair Jacqueline A. Berrien, the hearing “provided an important opportunity to dispel myths and learn about effective ways to dismantle barriers to employment for people with disabilities.” The meeting was divided into three panels to address the employment rates of people with mental disabilities; the requirements of the Americans with Disabilities Ac t (ADA) and how the Act applies to individuals with mental disabilities; and litigation to enforce the rights of people with mental disabilities.

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The Equal Employment Opportunity Commission (EEOC) is soliciting public input as it plans to review its significant regulations. The anticipated review is in response to a recent executive order (Executive Order 13563) (pdf) that directs federal agencies to consider the burden of regulation on business and job creation. Specifically, the Executive Order calls upon agencies to develop “a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether such regulations should be modified, streamlined, expanded or repealed to make the agency's regulatory program more effective and/or less burdensome in achieving its regulatory objectives.”

To that end, the EEOC asks for suggestions on how it should design its plan for reviewing its significant regulations. Such input might include the factors it should use to select rules for review, or whether the review should focus on particular types of regulations. With respect to specific regulations, the EEOC is interested in what should be included in the agency’s initial list of regulations for review over the next two years. The EEOC is interested in why the particular regulation should be modified, streamlined, expanded, or repealed; any available data on the costs and benefits of the regulation; and how the EEOC can better achieve the regulation’s objective. The request for public comments represents an important opportunity for employers to communicate their comments, concerns and suggestions for improving the EEOC’s regulatory program. Comments must be submitted electronically to Public.Comments.RegulatoryReview@eeoc.gov on or before March 22, 2011. A complete list of the agency’s regulations can be found here.

Photo credit: Jostaphot

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The Equal Employment Opportunity Commission (EEOC) has announced that it plans to hold a public meeting to discuss the employment of people with mental disabilities. The session will be held next Tuesday, March 15, 2011, at the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE., Washington, DC 20507.

This meeting follows a recent Senate committee hearing held to address how to improve employment opportunities for those with intellectual disabilities. In his opening statement to the Senate Committee on Health, Education, Labor and Pensions (HELP), Committee Chairman Tom Harkin (D-IA) said:

The important work we have done since the landmark passage 35 years ago of the Individuals with Disabilities Education Act, and 20 years ago of the Americans with Disabilities Act, dramatically improved the lives of persons with disabilities. We have addressed education and we have addressed access. Now we must address employment and economic well being.

During the hearing, Sharon Lewis, Commissioner, Administration on Developmental Disabilities, U.S. Department of Health and Human Services, referenced the January 2011 Current Population Survey (CPS) which found that the proportion of the population of people with disabilities who are employed is estimated to be 17%, compared to 63% for people without disabilities. A complete list of the panelists participating in the hearing and links to their testimony can be found here.

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On Wednesday, the Equal Employment Opportunity Commission (EEOC) held a public meeting to address the alleged “emerging practice” of excluding currently unemployed job-seekers from applicant pools. In a letter (pdf) urging EEOC Chair Jacqueline Berrien to address this issue, several members of Congress requested that Berrien “issue a statement detailing how employers discriminating against the unemployed can open themselves up to disparate impact claims because a larger percentage of the unemployed population consists of minorities.” To that end, the EEOC’s meeting was broken into three panels to discuss the Department of Labor’s latest unemployment data, the use of unemployment status screening, and the impact of this alleged screening practice on the unemployed.

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This second installment of the two-part EEOC year-end roundup includes a review of noteworthy EEOC court opinions involving EEOC subpoenas, challenges to EEOC litigation based on the failure to engage in good faith conciliation, the applicable statute of limitations in EEOC pattern or practice cases and potential discovery involving the EEOC. Click here to read Part I, which focused on EEOC charges, time targets, and litigation. While there have been a substantial number of published decisions involving the EEOC over the past several months, cases involving the following areas are particularly worth mentioning:

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On Wednesday the Senate officially confirmed the nominations of several members of the Equal Employment Opportunity Commission who had been placed with the EEOC via recess appointment in March 2010. The individuals and their terms are as follows:

• Jacqueline Berrian, who President Obama had appointed to be the agency’s chair, will serve until July 1, 2014.
• Chai Feldblum will serve as an EEOC Commissioner until July 1, 2013.
• Victoria Lipnic will serve as an EEOC Commissioner until July 1, 2015.
• P. David Lopez will serve as General Counsel for a term of four years.

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As 2010 comes to a close and employers continue to deal with an emboldened EEOC, there are various noteworthy EEOC developments to consider, including both agency and court developments. The first of this two-part series on the EEOC’s year-end review includes highlights from the EEOC's Annual Report, particularly focusing on the increased number of EEOC charges and time targets for investigating discrimination charges and a summary of recent EEOC litigation, including the types of lawsuits being filed and the primary jurisdictions recently involved.

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According to the Equal Employment Opportunity’s (EEOC) Semiannual Regulatory Plan and Agenda, a final rule implementing the employment provisions of the Americans With Disabilities Act Amendments Act (ADAAA) will be issued within in the next two weeks. The ADAAA, which was signed into law on September 25, 2008, significantly expands the definition of disability, enabling more individuals to be covered by the ADA. In September 2009, the EEOC issued proposed regulations to reflect that the expanded ADA definition of disability should be interpreted broadly. The EEOC’s regulatory agenda, which lists all of the rules under active consideration for the upcoming year as well as those rules enacted within the past six months, states that a finial ADAAA rule will be issued before the year is out.

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The newly-released Equal Employment Opportunity Commission’s (EEOC) Performance and Accountability Report (PAR) for Fiscal Year 2010 indicates that the EEOC is making a dent in the backlog of discrimination charges filed with the agency. According to EEOC Chair Jacqueline Berrien, the agency “is on the path toward rebuilding and on track to make further progress in the upcoming fiscal year to more efficiently and effectively enforce the federal laws prohibiting employment discrimination.” Key findings of the PAR include the following:

Private Sector Charges

According to the agency, the growth of private sector charge inventory slowed dramatically from 2009 to 2010. The year began with 85,768 pending charges, but ended with 86,338 – an increase of less than 1% – despite the fact that a total of 99,922 charges were filed with the EEOC in FY 2010, the highest number in the agency’s 45-year history. The charge inventory had increased by 15.9% between fiscal years 2008 and 2009. Of these private sector charges, 38.3% - slightly lower than the 39.7 % reported for 2009 – were completely resolved within 180 days.

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